People v. Torres CA5 ( 2022 )

Filed 8/2/22 P. v. Torres CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082533, F082534
Plaintiff and Respondent,
(Super. Ct. Nos. VCF363430,
v. PCF362571)
BRIGIDO TORRES,
OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Tulare County. Stephen
Drew, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Franson, J. and Peña, J.
INTRODUCTION
While on formal probation, appellant Brigido Torres was arrested twice for
domestic violence offenses, leading the People to file new criminal charges. At a
contested probation revocation hearing, the trial court took judicial notice of a
memorandum by the probation officer detailing the fact of the arrests and charges but
providing no description of appellant’s underlying conduct. Based on the memorandum
alone, the trial court found appellant violated his probation and sentenced him to two
years in state prison.
On appeal, appellant contends the trial court’s finding was not supported by
substantial evidence. We agree. The fact appellant was arrested and charged is not
evidence he violated the conditions of his probation. We reverse.
BACKGROUND
In May 2018, appellant pled no contest to charges in two different pending cases.
In case No. PCF362571, he pled no contest to first degree burglary (Pen. Code, §§ 459,
460, subd. (a)),1 forgery relating to identity theft (§§ 475, subd. (b), 473, subd. (a)), and
grand theft of a firearm (§ 487, subd. (d)(2)). In case No. VCF363430, he pled no contest
to vehicle theft (Veh. Code, § 10851, subd. (a)). In both matters, appellant was placed on
three years of formal probation with the condition that he “obey all laws, state, local,
federal.”
On August 6, 2020, the Tulare County Probation Department filed a document
titled “Certificate and Affidavit of the Probation Officer” alleging appellant violated the
terms and conditions of his probation by failing to obey all state laws. In an attached
memorandum, the probation officer summarized the alleged violation as follows:
“[Appellant] remained in compliance with his terms and conditions of
probation until June 10, 2020, when he was arrested by Hanford Police and
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
booked at the Kings County Jail regarding an alleged violation of PC
273.5(a); Kings County Superior Court, case #20CM2729, filed on June 11,
2020.
“On July 24, 2020, I contacted [appellant] at his reported address.
[Appellant] advised he posted bail in the Kings County matter and further
advised he was scheduled to return before the [c]ourt on August 24, 2020.
[Appellant] was directed to report any changes of address or phone number
and was also advised to obey all laws.
On July 26, 2020, [appellant] was arrested and booked at the Tulare County
Jail regarding an alleged violation of PC 273.5 and PC 273.6(a); Tulare
County Sheriff’s Department, report #20-09303. [Appellant] posted bail on
this matter and is expected to appear before the [c]ourt on October 2, 2020.
“Based on the aforementioned information, [appellant] is in violation of his
terms and conditions of probation, as said defendant failed to obey state
laws as evidenced on June 10, 2020, when he was arrested by the Hanford
Police Department regarding an alleged violation of PC 273.5 (Kings
County Superior Court, case #20CM2729); and as evidenced on July 26,
2020, when he was arrested by the Tulare County Sheriff’s Office
regarding allegations of PC 273.5 and PC 273.6(a) (Tulare County Sheriff’s
Department, report #20-09303).”
Based on the affidavit and memorandum, the trial court, summarily revoked
appellant’s probation and issued a bench warrant. Appellant was later arrested and
advised of the allegation he violated his probation, which he denied. The matter was
continued several times until it was set for a contested revocation hearing. When the
hearing was set, the trial court advised the parties it would be taking judicial notice of the
probation officer’s affidavit and memorandum.
At the contested hearing, the People offered no evidence and submitted.
Appellant’s counsel argued the probation officer’s affidavit and memorandum was
insufficient to find a violation because it only details the fact of appellant’s arrests and
charges, which she claimed do not rise “to the standard needed to prove a violation of
probation.” The trial court disagreed and found appellant violated his probation, noting
the affidavit and memorandum “shows two arrests, at least one filed.”
3.
At sentencing, the trial court sentenced appellant to two years in state prison on
the first degree burglary conviction and 16 months on each of the remaining counts to be
served concurrently.
Appellant filed a timely notice of appeal in both superior court cases. We granted
appellant’s motion to consolidate the appeals.
DISCUSSION
Appellant contends the evidence presented at the probation revocation hearing was
insufficient to establish a violation. Specifically, he contends the evidence detailing the
fact of his arrests and the fact that a criminal charge was filed against him was
insufficient to show he failed to obey all laws. We agree.
The People bear the burden of establishing the violation by a preponderance of the
evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439; People v. Shepherd (2007)
151 Cal.App.4th 1193, 1197–1198.) On appeal, we apply the substantial evidence
standard of review. (People v. Urke (2011) 197 Cal.App.4th 766, 773; People v. Kurey
(2001) 88 Cal.App.4th 840, 848.) “Under [this] standard, our review is limited to the
determination of whether, upon review of the entire record, there is substantial evidence
of solid value, contradicted or uncontradicted, which will support the trial court’s
decision. In that regard, we give great deference to the trial court and resolve all
inferences and intendments in favor of the judgment.” (People v. Kurey, supra, 88
Cal.App.4th at pp. 848–849, fns. omitted.)
The only evidence presented at appellant’s probation revocation hearing was the
probation officer’s affidavit and memorandum, which detailed the fact of appellant’s
arrests and pending criminal charges. However, the fact that appellant was arrested or
charged with a crime is not evidence he committed a criminal offense. (See People v.
Enriquez (2008) 160 Cal.App.4th 230, 241–242 [“Defendant’s mere arrest” was not a
violation of his probation condition that he obey all laws]; People v. Allen (1978) 77
Cal.App.3d 924, 937–938 [fact that an arrest warrant was issued was not evidence of
4.
guilt]; CALCRIM No. 220 [“The fact that a criminal charge has been filed against the
defendant[s] is not evidence that the charge is true.”].) The fact of an arrest only
indicates that a peace officer or magistrate determined there was probable cause to
believe the arrestee committed a criminal offense. (§§ 817, 836.) Similarly, the filing of
criminal charges only indicates that the People determined there was probable cause to
believe the person charged committed a criminal offense. (United States v. Lovasco
(1977) 431 U.S. 783, 790–791; Rules Prof. Conduct, rule 3.8(a).) While we can infer
from the fact of an arrest or the filing of criminal charges that evidence of a crime likely
exists, it is incumbent on the People to present that evidence in court.
Because the fact of appellant’s arrests and charges are not evidence that he
committed a criminal act, the record before the trial court contained no evidence
appellant violated the terms of his probation. While the probation officer’s memorandum
stated appellant was arrested for inflicting injury on a spouse or cohabitant (§ 273.5,
subd. (a)), there was no evidence presented that appellant committed a physical act
resulting in the infliction of injury. Moreover, there is nothing in the record identifying
the alleged victim or detailing his or her relationship to appellant. Similarly, the
memorandum stated appellant was arrested for violating a protective order (§ 273.6), but
there was no evidence establishing the existence of a valid protective order, and that
appellant engaged in conduct that violated that order. Simply put, there was no evidence
showing what appellant did that constituted a violation of law.
We recognize that section 1203.2, subdivision (a), authorizes the trial court to
revoke probation if it “has reason to believe from the report of the probation or parole
officer or otherwise that the person has violated any of the conditions of their
supervision ....” (§ 1203.2, subd. (a).) However, there are limitations to the trial court’s
ability to rely solely on the probation report. As we explained above, a violation must be
shown by the preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d at
p. 439.) Moreover, the contents of a probation report are not necessarily admissible at a
5.
violation hearing. (People v. Abrams (2007) 158 Cal.App.4th 396, 405.) Probation
revocation hearings are governed by the applicable rules of evidence (Jones v. Superior
Court (2004) 115 Cal.App.4th 48, 60), and the admissibility of hearsay evidence is
limited by a probationer’s due process rights. (People v. Liggins (2020) 53 Cal.App.5th
55, 64.) In other words, the trial court’s “reason to believe” a violation occurred must be
shown by a preponderance of admissible evidence, regardless of what is asserted in the
probation report.
Here, the trial court simply accepted the conclusions in the probation report as true
without subjecting the underlying evidence to the requisite level of judicial scrutiny. In
so doing, the trial court bypassed the requirement that the probation violation be
established by a preponderance of admissible evidence at a probation revocation hearing.
The probation officer’s conclusory assertion that appellant violated his probation by
being arrested and charged with a crime is not evidence of a violation. 2 While the
evidence underlying the arrests and charges might have been sufficient to establish a
violation, the underlying evidence was never admitted, and therefore its weight and
admissibility was never considered by the trial court.
Based on the record, we conclude the evidence presented at the probation
revocation hearing was insufficient to support the finding of a violation. Appellant’s
arrests and charges suggested he may have committed a criminal offense, but the People
failed to present any evidence in court proving appellant committed a criminal offense.
The fact of the arrests and charges, without more, did not constitute substantial evidence
that appellant failed to obey all state laws.
DISPOSITION
The judgment is reversed.
2 Appellant and respondent also dispute whether the probation officer’s
memorandum, and the facts described therein, should have been excluded hearsay. We
need not address this issue because we conclude the evidence was insufficient regardless.
6.