People v. Simpson CA2/1 ( 2022 )

Filed 1/31/22 P. v. Simpson CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B308791
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA459105)
v.
TYJEE SIMPSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa Sullivan, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
Tyjee Simpson appeals from a judgment entered after the
trial court found him in violation of his probation in this case and
sentenced him to two years in jail. For the reasons explained
below, we conclude two of the three probation violations the trial
court found were not supported by sufficient evidence. Therefore,
we remand the matter for the trial court to reconsider the
sentence it imposed.
BACKGROUND
I. In September 2017, Simpson Is Placed on Probation
On September 25, 2017, Simpson pleaded no contest in this
case to felony attempted pandering by procuring another person
for the purpose of prostitution. (Pen. Code, §§ 664 & 266i, subd.
(a)(1).)1 Imposition of sentence was suspended, and the trial
court placed Simpson on formal probation for three years. The
terms and conditions of his probation included: serving three
days in county jail (with credit for three days served); obeying all
laws and orders of the court; obeying all rules, regulations, and
instructions of the Los Angeles County Probation Department
(the Probation Department); cooperating with his probation
officer on a probation plan; reporting to his probation officer
within 48 hours of the hearing; and paying fines and assessments
totaling $470.
II. July 2018 Probation Violation Hearing
On July 19, 2018, Simpson pleaded no contest to
misdemeanor criminal threats (§ 422) in case number 8SV02656
(San Fernando Courthouse). Imposition of sentence was
suspended, and the trial court placed Simpson on formal
probation for three years. Under the terms and conditions of his
1 Undesignated statutory references are to the Penal Code.
2
probation, he was required to serve 60 days in county jail and
stay 100 yards away from the store where the incident occurred
and three individuals involved in the incident, among other
things.
At the same hearing, Simpson admitted he violated his
probation in the instant case by failing to obey all laws (as
evidenced by his criminal threats conviction) and not completing
a community labor requirement. The trial court found Simpson
in violation of his probation in this case. The court revoked and
reinstated probation. The terms and conditions of probation in
this case included: serving 90 days in county jail (consecutive to
the jail term in case No. 8SV02656, with credit for 37 days); and
reporting to his probation officer within 48 hours of his release
from jail, in addition to the terms and conditions previously
imposed and not modified. Simpson asked the court if he was
required to report at an “actual” probation office or if he could
report at a kiosk machine. The following exchange occurred:
“The court: The actual office.
“[Simpson]: They have --
“The court: Pick one and go. Okay?
“[Simpson]: Any one?
“The court: I want you to go where you know your
probation officer is. I don’t want you to get in trouble, that’s why
I’m saying this. It’s your responsibility. I don’t want anything
left hanging out there, Mr. Simpson.”
III. February 2019 Probation Violation Hearing
On January 8, 2019, Simpson was arrested for vandalism.
(§ 594, subd. (a)(2).) According to a supplemental probation
report, filed with the trial court on January 25, 2019, a criminal
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case arising from the vandalism arrest was filed in the Bellflower
Courthouse.
At a February 15, 2019 probation violation hearing in the
instant case, Simpson’s counsel informed the trial court that the
vandalism case had been dismissed, and the prosecution
recommended Simpson admit to a probation violation in this
case—apparently based on the vandalism—in exchange for time
served. Simpson stipulated to a probation violation, and the
court found Simpson in violation of his probation in this case.
The court revoked and reinstated probation. The terms and
conditions of probation in this case included: serving 77 days in
county jail (with credit for 77 days); and reporting to his
probation officer within 48 days of his release, in addition to the
terms and condition previously imposed and not modified.
IV. July 2020 Probation Violation Hearing
On July 29, 2020, Simpson pleaded no contest to
misdemeanor simple battery (§ 242) in case number OBL04328
(Bellflower Courthouse). The trial court sentenced him to 60
days in county jail. Pursuant to the plea, the court dismissed two
misdemeanor charges for driving with a suspended or revoked
license and driving without proof of insurance (Veh. Code, §§
14601.1, subd. (a) & 16028, subd. (a)) in case number OBL04059.
At the same hearing, Simpson admitted he violated his
probation in the instant case based on the battery conviction.
The trial court found Simpson in violation of his probation in this
case. The court revoked and reinstated probation. Simpson
agreed to a one-year extension of his probation until September
25, 2021. The terms and conditions of probation in this case
included serving 60 days in county jail (concurrent to the jail
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term in case No. OBL04328, with credit for 53 days), in addition
to the terms and conditions previously imposed and not modified.
V. Current Probation Violation Hearing
A. Probation hold alert and summary revocation
of probation
On September 10, 2020, the Probation Department filed a
“Probation Hold Alert” in the trial court based on a request by a
probation officer with the surname Meza, indicating Simpson
appeared to be in violation of his probation. The alert and an
attached one-page probation report were dated September 5,
2020. The probation report summarized a police officer’s
probable cause declaration (also attached to the alert), stating
that on September 5, 2020, the Culver City Police Department
arrested Simpson for rape (§ 261, subd. (a)(2)). The probation
report summarizing the probable cause declaration states, in
pertinent part: “The officers came into contact with the
defendant [Simpson] and the victim as they sat inside a vehicle.
The victim stated that the defendant forced her to have
intercourse with him. The victim said she told the defendant no.
The incident happened two weeks prior, in the victim[’]s vehicle,
near the beach in Malibu.” As stated in the report, the Probation
Department requested approximately three weeks to complete an
investigation regarding the potential probation violation and to
submit a further report to the court.
At a court hearing in the instant case on September 10,
2020, the trial court summarily revoked Simpson’s probation and
ordered him held in custody without bail until the next hearing,
after reviewing and considering the above-described Probation
Hold Alert and attached documents. The court also ordered the
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Probation Department to prepare a “full probation report”
addressing Simpson’s progress on probation.
B. Supplemental probation report
Deputy Probation Officer Ruben Mata prepared a
supplemental probation report, which was filed in the trial court
on September 24, 2020. The report states that a September 15,
2020 records check with the California Bureau of Criminal
Identification and Investigation indicated Simpson was arrested
for rape on September 5, 2020 by the Culver City Police
Department (as stated in the Probation Hold Alert). Deputy
Mata’s supplemental probation report includes no details
regarding the circumstances of the alleged crime or the status of
the investigation.
Deputy Mata’s supplemental probation report also states:
“The probationer is currently on automated minimum
supervision caseload and is required to report monthly via kiosk.
He was orientated on 10/05/2017 where he was given permanent
instructions regarding his conditions of probation. [¶] The
defendant last reported on 12/19/2019. He has failed to report in
September 2020; August 2020; July 2020; June 2020; May 2020;
April 2020; March 2020; February 2020; and January 2020. The
probationer is not in compliance with his reporting requirement.”
The supplemental probation report also notes Simpson still
owed $470 in fines and fees. His payment plan required him to
pay $25 per month on this obligation. His first payment was
originally due on November 22, 2017, but the date was modified
at some point so that his first payment was not due until
November 22, 2020.
As stated in the supplemental probation report, the
Probation Department recommended: (1) that the court find
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Simpson in violation of his probation “for incurring a new arrest,
and failure to report monthly”; (2) that Simpson “be ordered to
serve a suitable period of time in custody”; and (3) that the
instant matter “be continued to trail disposition of his newest
arrest.”
C. September 24, 2020 hearing
On September 24, 2020, the trial court held a probation
violation hearing setting conference in this matter. The court
indicated it had reviewed the supplemental probation report, and
it appeared to the court that Simpson was in violation of his
probation based on his September 5, 2020 arrest, his failure to
report to the Probation Department, and his “outstanding”
payment obligation (although the supplemental probation report
states his first payment on that obligation was not due for
approximately two months).
The trial court asked the prosecutor for an update on
matters relating to Simpson’s September 5, 2020 arrest. The
prosecutor responded: “Your Honor, I think the information I
have is essentially a lack of information. I checked our case
management system just a few minutes ago. There was no record
of either a filed case or a declination which leads me to believe
that the case may not have been presented to the D.A.’s Office for
filing yet or if it is, it is under further investigation. So that’s the
only update I have at his point.”
Simpson’s counsel requested the trial court release
Simpson on his own recognizance pending the probation violation
hearing. Counsel stated: “I did talk to him [Simpson] about the
technical violations. I wanted to note that there is no mention at
all in the probation officer’s report of any failure to report to the
kiosk for any month during the first several years of his
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probation that is [sic] failure to report in the end, December 2019,
and then in the beginning and through the pandemic of 2020.
Mr. Simpson says the office had been closed for some time
because of the pandemic. [¶] Other than that, I would hope that
the court would not be keeping him in for the failure to pay the
fees. He did say he recently had gotten a new job.”
The trial court denied Simpson’s request to be released on
his own recognizance pending the probation violation hearing,
stating: “There’s a number of revocations that have occurred
throughout the probationary period. There’s been prior
admissions and violations that have been heard. So I don’t have
confidence that Mr. Simpson would return to court should he be
released.” The court explained it would have considered
releasing Simpson on his own recognizance “if it were just a
technical violation” (e.g., failure to report or failure to pay fines
and fees). The court set the matter for a probation violation
hearing.
D. October 20, 2020 probation violation hearing
At the outset of the October 20, 2020 probation violation
hearing, the trial court stated it had reviewed “the court’s file and
notes” and the dockets in “the numerous Bellflower cases . . . that
Mr. Simpson has had since he was placed on probation subject to
the plea that was entered on September 25, 2017.” Regarding
Simpson’s potential probation violations, the court listed the
“additional arrest” (the September 5, 2020 arrest), a
misdemeanor conviction “that has not been addressed in his
probation,” 2 and “the allegations that he failed to report and
2The trial court was incorrect when it indicated Simpson
had a misdemeanor conviction which had not yet resulted in a
probation violation. As explained above, charges for driving with
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failed to make payments.” 3 The court stated its tentative ruling
was to deny probation and sentence Simpson to the low term of
18 months on the attempted pandering charge to which he
pleaded no contest in this case on September 25, 2017.
The trial court asked defense counsel if she wished to be
heard, and she responded, “No.” The court and defense counsel
discussed Simpson’s custody credits. Defense counsel informed
the court Simpson was “prepared to admit that he is in violation
of his probation.” Counsel added: “I’m of the understanding from
[the prosecutor] that [Simpson’s] probation officer is here in the
building waiting in the witness room and would testify based on
[sic] to what is contained in his report which is that Mr. Simpson
failed to report for one month of 2019 and all of 2020.” The court
noted the probation officer’s report also stated Simpson had “not
made any payments towards the fines and fees in this case.”
Defense counsel responded: “He was indigent and unable to pay
the fines which totaled $470, but he did not make payments.”
Simpson interjected and stated that the extent of his
failure to report to probation was limited to January and
February 2020 “at the most,” because the building closed due to
the COVID-19 pandemic, and he could no longer check into a
kiosk located inside the building. Defense counsel stated: “So
a suspended or revoked license and driving without proof of
insurance in case number OBL04059 were dismissed in
connection with Simpson’s July 29, 2020 no contest plea to simple
battery in case number OBL04328. Simpson admitted to a
probation violation based on the battery conviction.
3As set forth above, Simpson’s first payment on his fines
and fees in this case was not due until November 22, 2020, more
than a month after this probation violation hearing.
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Mr. Simpson is in violation of his probation by missing – by
failing to report monthly to his probation officer as ordered for
every single month of probation.” The trial court responded: “All
right. I’ll take an admission for that.”
The trial court added: “I’m just going to indicate for the
record and for Mr. Simpson’s knowledge that in this court, this
file, more cases have been picked up every year on probation than
maybe I’ve ever seen.” Addressing Simpson, the trial court
stated: “So if we agree that the issue is a failing to report to
probation, that’s fine for me to give you the indicated sentence
[the low term of 18 months], and that’s what I’ll do today. But if
you want to push it, we could push it. [¶] What would you like to
do?” Simpson responded: “I’ll take the low term. I’ll take the low
term.”
The trial court took a recess after Simpson indicated he had
not had sufficient time to discuss his hearing rights with his
attorney, upon the court’s inquiry. After the recess, the following
exchange occurred:
“[The court]: Sir, do you want to go forward with the
court’s indicated [tentative], or should we have a hearing?
“[Simpson]: Um. Miss, with all due respect, Your Honor, I
don’t know what that means.
“The court: Okay. So we’ll come back at 1:30 and we’ll
start the hearing.
“[Simpson]: No, no. I don’t want a hearing. I just don’t
know what it means. [¶] I’ll go with the court’s indication.
“[Defense counsel]: Your Honor, we could do the hearing
right now and be done at noon.
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“[Simpson]: No. I don’t -- I don’t want a hearing. I just
want to do the indication. [¶] I just want to ask, does the three –
is it true that I only would have to do three and a half months?
“The court: All right. So at this point, the court’s going to
go forward with the calendared hearing, and [prosecutor], you
may call your first witness, ma’am.”
The prosecution called Deputy Probation Officer Ruben
Mata. He testified he was assigned to an “automated minimum-
supervision caseload,” which consisted of “low-risk defendants.”
His duties included preparing court reports, checking
probationers in each month, and making sure they were following
court orders. Simpson was assigned to Deputy Mata’s caseload in
August 2020 (a couple months before this hearing), when
Simpson’s former probation officer went on medical leave. Mata
had never met Simpson, either in person or over the telephone.
Deputy Mata testified that he wrote the above-referenced
supplemental probation report regarding Simpson, which was
filed in the trial court in this case. To obtain information about
Simpson’s reporting and payment status, Mata accessed the
Probation Department’s automated adult probation system,
which reflected the last time Simpson reported to his probation
officer was in December 2019; and Simpson had not made a
payment on his financial obligation (the fines and fees). Defense
counsel objected to Mata’s testimony regarding Simpson’s
reporting and payment status on lack of foundation and hearsay
grounds. The trial court overruled the objection, stating: “The
court will give it the weight as necessary given the relaxed
evidentiary requirements at this hearing.”
Deputy Mata testified that the automated system also
tracked probationer’s arrests. The system reflected that another
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probation officer placed a probation hold on Simpson after he was
arrested on September 5, 2020 for violating section 261 (rape).
Mata explained that a probation officer in a special unit of the
Probation Department would place a probation hold if the
circumstances arose after hours or on a weekend when the
assigned probation officer was not working. Defense counsel
objected to Mata’s testimony regarding Simpson’s probation hold
on hearsay and lack of personal knowledge grounds. The trial
court overruled the objections.
On cross-examination, Deputy Mata testified that he did
not personally know, and had never met, the probation officer
who placed the probation hold on Simpson. That probation
officer had placed probation holds on other probationers assigned
to Mata’s caseload. The prosecutor asked Mata where the
probation officer obtained the information he inputted into the
system for the probation hold on Simpson. Mata responded that
the information came from a probable cause declaration prepared
by a police officer from the Culver City Police Department. Mata
did not know if the probation officer who placed the probation
hold on Simpson spoke with the police officer who prepared the
probable cause declaration.
At this point in the cross-examination of Deputy Mata, the
following exchange occurred between defense counsel and the
trial court:
“[Defense counsel]: Okay I’d like to renew my objection to
him [Deputy Mata] testifying as to what he received in the
system because it is based on underlying hearsay.
“The court: So I think in the manner in which the
testimony has been elicited, there’s a legal basis for your
objection. The court’s recollection, however, is that the business
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record that was submitted to the court attached that P.C.
[probable cause declaration] as part of the report. So I just want
to confirm that.
“[Defense counsel]: But--
“The court: So I’ll sustain your objection.
“[Defense counsel]: Okay. Just for the record, I don’t think
police reports are inadmissible in probation violation hearings
because of hearsay, but also because Mr. Simpson has a
confrontation right in both a trial and in a probation violation
hearing. So even if the court has the probable cause declaration,
he still has a confrontation right that would be violated by that
information just being considered without his -- without his
attorney confronting and cross-examining that witness whose
name, by the way, is not even in the probable cause declaration.
“The court: So as I’ve indicated, the court has sustained
your objection --
“[Defense counsel]: Okay.
“The court: -- at this point.”
On further cross-examination, Deputy Mata confirmed he
had never met Simpson and would not be able to identify him on
sight.
On redirect examination, Deputy Mata testified that
probationers in his “low-risk caseload” were required to report to
the Probation Department “via kiosk.” During the COVID-19
pandemic, however, probation officers were accepting voice
recordings as probationers’ means of reporting to the Probation
Department. Mata reiterated that according to the automated
system, Simpson had not reported to the Probation Department
since December 2019. Mata added: “I can only testify from when
I took over the case in August [2020].” Thereafter, Mata
13
confirmed that based on the information in the automated system
and his experience supervising Mata for a couple months, Mata
had not reported to the Probation Department since December
2019.
Neither side presented any additional evidence, and the
trial court did not invite argument. In making its ruling, the
court stated:
“All right. As counsel is well aware, the burden of proof of
this is preponderance of the evidence. There is a low threshold of
evidentiary burden, evidence sufficient to prove -- insufficient to
prove that a probationer committed a criminal offense beyond a
reasonable doubt may, in fact, support a finding that probation
has been violated.
“Documentary evidence is admissible, and the court in this
matter is considering the probation hold alert that was presented
to the court by Deputy Mata -- it was file stamped September
10th based on the arrest that occurred on September 5th.
“The court will note that at this date the court has no
indication of whether or not any case has been filed on this, but
the defendant was arrested and held in custody on the allegations
of a 242 involving a female and a 261 also involving this same
female.
“Additionally, the court is considering the probation report
dated September 24 submitted by Mr. Mata indicating that he
[Simpson] was oriented on probation on October 5, 2017 and had
most recently reported December 19th, 2019. He failed to report
September 2020, August 2020, July 2020, June 2020, May 2020,
April 2020, March 2020, February 2020, and January 2020.
“He has failed to make any payments, including the
payment plan of $25 a month, toward the restitution in this case.
14
“The court will also note for the record that upon review of
the file, the court found that since being placed on probation in
2017, there have been a number of violation hearings held in this
matter. He was given a chance and reinstated.
“In February 2019, involved in a January 8th 2019 arrest –
that was the vandalism -- a violation was taken. He was given
another chance.
“July 29th, 2020 in Bellflower, the Bellflower court took a
violation on this case for the 245(a)(1) that was filed in case no.
OBL04328 also while he was [on] probation. At that time
probation was extended to September 25, 2021.
“There has been no action taken by this court on a
conviction that occurred in OBL04059 on May 19th, 2020, which
is reflected in the court’s records, but the deputy probation officer
somehow failed to address, and then we have the most recent
arrest.[4]
“Based on the failure to report, the failure to pay any fines
and fees, and the systemic failure to obey all laws while on
probation, I do find the defendant is in violation of the terms and
conditions of his probation. Probation remains revoked.
“The court at this time, based on the testimony of the
probation officer and the probation reports that have been filed in
this matter, does find him in violation.
“At this time the defendant is being sentenced to the county
jail for a period of two years.
4 As explained above, Simpson was not convicted of a crime
in case number OBL04059 because the charges were dismissed as
part of his plea agreement in case number OBL04328.
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“He will be released either on mandatory supervision or
parole, and the revocation fee that was held in abeyance is now
imposed.
“He will receive custody credits of 163 actual plus 163 good
time/work time for a total of 326 custody credits on the two-year
sentence.”
Neither defense counsel nor the prosecutor addressed the
trial court regarding the ruling.
DISCUSSION
Simpson contends the trial court’s findings that he violated
his probation by failing to report, failing to pay fines and fees,
and failing to obey all laws are not supported by sufficient
evidence. He argues the trial court relied on inadmissible
hearsay in the probation reports in support of its findings. He
also contends, to the extent we agree that some of the probation
violation findings are not supported by sufficient evidence, we
must remand the matter for the trial court to reconsider whether
to reinstate him on probation or sentence him to jail or prison
time.
I. General Legal Principles Regarding Revocation of
Probation
A court “may revoke and terminate the supervision of [a
probationer] if the interests of justice so require and the court, in
its judgment, has reason to believe from the report of the
probation . . . officer or otherwise that the person has violated
any of the conditions of their supervision, or has subsequently
committed other offenses, regardless of whether the person has
been prosecuted for those offenses.” (§ 1203.2, subd. (a).) “It has
been long recognized that the Legislature, through this language
[in § 1203.2, subd. (a)], intended to give trial courts very broad
16
discretion in determining whether a probationer has violated
probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
Revocation of probation is permissible “when the facts supporting
it are proven by a preponderance of the evidence.” (Id. at pp. 441,
447.) Upon revocation of probation, a trial court has broad
discretion in deciding whether to reinstate probation or sentence
a defendant to jail or prison. (People v. Downey (2000) 82
Cal.App.4th 899, 909.)
Appellate courts “review a probation revocation decision
pursuant to the substantial evidence standard of review
[citation], and great deference is accorded the trial court’s
decision, bearing in mind that ‘[p]robation is not a matter of right
but an act of clemency, the granting and revocation of which are
entirely within the sound discretion of the trial court.’ ” (People
v. Urke (2011) 197 Cal.App.4th 766, 773.) “ ‘ “[O]nly in a very
extreme case should an appellate court interfere with the
discretion of the trial court in the matter of denying or revoking
probation.” ’ ” (Ibid.) Moreover, we will not disturb a trial court’s
decision to sentence a defendant to jail or prison rather than
reinstate the defendant on probation after revocation unless the
decision is arbitrary and capricious. (People v. Downey, supra, 82
Cal.App.4th at pp. 909-910.)
“We review the trial court’s rulings on hearsay objections
for abuse of discretion.” (People v. Liggins (2020) 53 Cal.App.5th
55, 61.)
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II. Sufficiency of the Evidence Supporting the Trial
Court’s Findings That Simpson Violated His
Probation
A. Failure to report
Simpson contends the prosecution presented insufficient
evidence to show (1) he was required to report to the Probation
Department monthly as a condition of his probation; (2) he was
instructed on how to report; and (3) his failure to report was
willful. Simpson’s challenges to the sufficiency of the evidence
supporting the trial court’s finding that he violated his probation
by failing to report are without merit.
We note that at the outset of the probation violation
hearing, Simpson was prepared to admit he violated his
probation by failing to report monthly to the Probation
Department. He did not dispute that monthly reporting was a
condition of his probation. In fact, he, in his own words,
acknowledged at the hearing that he violated his probation in
January 2020 and February 2020 by failing to report (albeit not
under oath). He told the court (before the evidentiary hearing)
that he could not report to probation beginning in March 2020
because the building was closed due to the COVID-19 pandemic.
Deputy Mata testified that probationers in his automated
minimum supervision caseload—i.e., Simpson—were required to
report to the Probation Department via kiosk. Deputy Mata’s
September 24, 2020 probation report states that Simpson was
required to report monthly, and he was “orientated” regarding
this condition on October 5, 2017.5 At multiple probation
5Simpson asserts he no longer had a reporting requirement
because the trial court did not specifically order him to report to
the Probation Department within 48 hours of his release from jail
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violation hearings, including this one, Simpson indicated he knew
how to report via kiosk. Simpson provided no excuse for his
failure to report to the Probation Department via kiosk in
January 2020 and February 2020. (Cf. People v. Galvan (2007)
155 Cal.App.4th 978, 982 [probationer’s failure to report to
probation department after his release from jail was not willful,
as he was deported to Mexico immediately upon his release from
jail].) Beginning around March 2020, due to the COVID-19
pandemic, the Probation Department was accepting voice
recordings as probationers’ means of reporting to the Probation
Department, according to Deputy Mata’s testimony. The
evidence demonstrates Simpson never checked in with the
Probation Department after December 2019.
Simpson argues the trial court abused its discretion in
relying on hearsay from the Probation Department’s automated
adult probation system and Deputy Mata’s probation report in
support of its finding Simpson violated his probation by failing to
report. We disagree. This type of non-testimonial hearsay is
reliable, and it is admissible at a probation violation hearing
without a hearsay exception, even when the testifying probation
officer is not the person who generated or inputted the
information. (See, e.g., People v. Abrams (2007) 158 Cal.App.4th
at his probation violation hearing on July 29, 2020. This
assertion is belied by his statements at the October 20, 2020
probation violation hearing indicating he knew he had a
reporting requirement and was prepared to admit he violated his
probation by failing to report. In any event, at the July 29, 2020
hearing, when the trial court reinstated his probation, the court
indicated the terms and conditions of probation remained the
same—meaning the reporting requirement to which he was
“orientated” on October 5, 2017 remained in place.
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396, 398 [“We hold that whether or not a defendant has reported
to his probation officer or made monetary payments to the officer
are essentially non-testimonial; thus, even if hearsay, they are
admissible at a probation violation hearing”].)
Substantial evidence establishes Simpson violated his
probation by failing to report. The evidence shows monthly
reporting to the Probation Department was a condition of
Simpson’s probation; Simpson knew he had a monthly reporting
requirement; he failed to report via kiosk in January 2020 and
February 2020 without excuse; and he never checked in with the
Probation Department thereafter.
B. Failure to pay fines and fees
As stated in the September 24, 2020 supplemental
probation report, Simpson’s first payment toward the $470 in
fines and fees imposed in this case was not due until November
22, 2020—more than one month after the trial court found
Simpson violated his probation by failing to pay these fines and
fees.
The Attorney General argues this probation violation
finding is supported by substantial evidence because the record
indicates that Simpson was not in compliance with his payment
plan at some point while he was on probation, before the due date
on his first payment was modified from November 22, 2017 to
November 22, 2020. For example, probation reports filed in this
case on July 5, 2018 and January 25, 2019 state Simpson had not
made any payments on his financial obligation, and he was not in
compliance with his payment plan.
It is not clear from the record before us when Simpson’s
payment plan was modified. But the fact of the matter is that on
October 20, 2020, when the trial court found Simpson violated his
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probation by failing to pay fines and fees, Simpson was not in
violation of his payment plan. Thus, this probation violation
finding is not supported by substantial evidence.
C. Failure to obey all laws
The only information the trial court had before it indicating
Simpson failed to obey all laws was the fact he was arrested for
rape on September 5, 2020. The trial court agreed with Simpson
(as does the Attorney General) that it could not consider the
summarized statements of the unidentified victim in the
documents attached to the Probation Hold Alert, without
violating Simpson’s due process confrontation rights. (See People
v. Arreola (1994) 7 Cal.4th 1144, 1148, 1160-1161 [testimonial
hearsay is inadmissible at a probation violation hearing absent a
showing of witness unavailability or other good cause].) The
prosecution presented no admissible evidence about the
circumstances of the incident to indicate Simpson had violated
the law.
The Attorney General argues the fact Simpson was
arrested for a crime, standing alone, constitutes substantial
evidence supporting the trial court’s finding Simpson violated his
probation by failing to obey all laws. Not so. It is true, as the
Attorney General asserts, that the prosecution did not need to
prove beyond a reasonable doubt that Simpson committed a
crime in order to prove he violated his probation by failing to obey
all laws. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.)
But the prosecution needed to prove by a preponderance of the
evidence that Simpson violated the law. The fact of an arrest,
without more, does not accomplish that.
The trial court also indicated in its ruling that Simpson had
sustained a misdemeanor conviction in May 2020 for an
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unspecified crime, which did not result in a probation violation.
As explained above, the trial court was apparently and
mistakenly referring to charges that were dismissed as part of a
plea agreement, not a conviction. The dismissed charges do not
constitute substantial evidence supporting the trial court’s
finding that Simpson violated his probation by failing to obey all
laws, as the Attorney General agrees. The record demonstrates
that all of Simpson’s convictions resulted in past revocations (and
then reinstatement) of his probation.
The evidence presented to show that Simpson failed to obey
all laws—the mere fact of an arrest—is insufficient to support a
finding that Simpson violated his probation.
III. Remand for Reconsideration
The trial court did not err in revoking Simpson’s probation
based on his failure to report to the Probation Department. The
court’s decision to sentence Simpson to two years in jail, however,
was based on its findings Simpson violated his probation by
failing to report, failing to pay fines and fees, and failing to obey
all laws. It is not clear from the record that the court would have
imposed the same sentence based on only one of these findings—
a failure to report—which is the only probation violation that
remains. The court indicated at the outset of the probation
violation hearing that it would sentence Simpson to 18 months in
jail for his failure to report to probation (to the extent he
admitted the violation prior to the evidentiary hearing).
Accordingly, we remand the matter for the trial court to
reconsider its sentence in light of the reduced number of
probation violations Simpson committed. We express no opinion
regarding an appropriate sentence or disposition for this
probation violation.
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DISPOSITION
The finding that Simpson violated his probation by failing
to report is affirmed. The findings that Simpson violated his
probation by failing to pay fines and fees and failing to obey all
laws are reversed. The matter is remanded for the trial court to
reconsider the sentence imposed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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