People v. Gordon CA2/6 ( 2014 )

Filed 4/15/14 P. v. Gordon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B248403
(Super. Ct. No. MA054220)
Plaintiff and Respondent, (Los Angeles County)
v.
SHATOYA LYN GORDON,
Defendant and Appellant.
In 2012, Shatoya Lyn Gordon pled no contest to first degree burglary (Pen.
Code, § 459)1 and kidnapping (§ 207, subd. (a)), and was sentenced to six years four
months in state prison. The trial court suspended execution of sentence and placed her on
five years' probation. Subsequently she was charged with an unrelated assault with a
deadly weapon (§ 245, subd. (a)(1)) of the victim from the earlier case. Her probation
was summarily revoked.
A jury acquitted appellant of assault, but the trial court found appellant had
suborned perjury during trial and had violated protective orders. It revoked probation,
imposed the previously suspended prison sentence of six years four months and awarded
387 days of presentence custody credit.
1 All statutory references are to the Penal Code.
Appellant contends she was denied procedural and substantive due process
because the trial court did not provide adequate notice of the grounds for revoking
probation or an adversarial hearing. We conclude appellant waived appellate review by
failing to raise these claims in the trial court. She also has not demonstrated error. We
affirm.
FACTS AND PROCEDURAL BACKGROUND
Appellant and the victim, David Jones, have a history of domestic discord.
Between 2008 and 2011, Jones obtained three separate protective orders against
appellant. Her conviction for burglary and kidnapping in 2012 arose out of an incident
involving Jones and the couple's minor child. As a condition of probation, appellant was
required to "obey all laws, rules, regulations, and orders of the court." She also was
ordered to stay away from Jones. The trial court advised: "[I]f you violate your terms of
probation, including violating the protective order, you're facing six years, four months in
state prison."
Nine months later, appellant was charged with assaulting Jones with a
deadly weapon. After summarily revoking her probation, the trial court ordered that the
assault case (No. MA057506) "be heard with" the probation violation.
The trial lasted five days. Appellant's defense was that she was at home
with several other people at the time of the alleged assault. Two witnesses, Samia Abdul-
Rahmaan and Eric Floyd, corroborated this alibi. During cross-examination, the
prosecutor confronted Abdul-Rahmaan with recorded jailhouse conversations in which
appellant encouraged Abdul-Rahmaan to "lie and say [she] left later than [she did]."
Appellant also asked Abdul-Rahmaan to speak with another witness about doing the
same. During a break in Abdul-Rahmaan's testimony, the trial court suggested that
appellant consider a possible plea bargain:
"THE COURT: What I can tell you is that you
are on probation on that case, and . . . that makes it really
difficult for you because you have six years, four months
hanging over your head. And there are two strikes on that
2
case. [¶] If that case wasn't in existence, I would think that
we could have settled the trial matter. But that is the fly in
the ointment, if you will. Do you see what I'm saying?
THE DEFENDANT: Yeah. Basically, did I
violate probation.
THE COURT: Well, that's going to be an issue
that we are going to have to address. [¶] You know, making
telephone calls to a witness which reasonably could be
construed to affect their proposed testimony is a problem."
When appellant testified, she admitted asking Abdul-Rahmaan to get
another witness, Jai Winston, to lie under oath to support her alibi. Appellant also
admitted violating the protective orders requiring her to stay away from Jones.
On the final day of trial, the court reiterated it had "to deal with the issue of
the probation violation." After the jury found appellant not guilty of assault, the court
advised: "Let me state preliminarily -- and I am happy to hear from both sides -- I
indicated that I was hearing the violation hearing concurrent with the trial. And
preliminarily, I do find she is in violation of probation. [¶] And that's based on not
necessarily what happened to David Jones, but based on the telephone calls and the fact
that [appellant] clearly was trying to influence or manufacture testimony to support an
alibi. [¶] I think . . . it didn't impact [the jury's] decision, but obviously what she did and
what I heard clearly . . . was what a desperate woman was trying to do to prove that she
wasn't guilty."
Following a lunch break, the trial court found by a preponderance of the
evidence that appellant had violated probation. It stated that regardless of the jury's
verdict, it could not ignore "what happened on those jailhouse calls." It explained:
"[T]he fact that what you did by . . . . sub[orning] perjury or attempting to do so by
concocting this alibi goes to the very core and heart and the very integrity of the criminal
justice system." Appellant responded: "I understand, sir." Defense counsel did not raise
3
any objections or ask to be heard on the probation matter. The court continued the matter
for sentencing.
Appellant filed a letter acknowledging the wrongfulness of her actions and
requesting reinstatement of probation. The trial court determined her manipulation of
witness testimony and suborning of perjury merited imposition of the previously
suspended sentence. It also determined she had violated the protective orders,
"demonstrat[ing] a continuing unwillingness to follow a court order."
DISCUSSION
Appellant argues she was denied due process during the probation
revocation proceeding because she had neither written notice of the grounds of the
probation violation nor an adversarial hearing. The People contend she forfeited
appellate review by failing to raise these issues in the trial court. We agree.
Appellant did not object when, prior to trial, the trial court announced the
probation revocation would be heard concurrently with the trial on the assault charge.
Nor did she raise any objections when, during trial, the court told her the recorded
jailhouse conversations could be deemed a probation violation. She also did not object or
ask to be heard when the trial court stated its tentative decision to find her in violation of
probation based on her subornation of perjury. Thus, any claim of inadequate notice or
lack of an adversarial hearing was waived. (People v. Hawkins (1975) 44 Cal. App. 3d
958, 967; People v. Buford (1974) 42 Cal. App. 3d 975, 982.)
Even if the claim was not waived, appellant has not demonstrated error.
Section 1203.2, subdivision (a), authorizes the trial court to revoke probation if it "has
reason to believe . . . that the person has violated any of the conditions of his or her
supervision." Trial courts must provide a criminal defendant with certain minimum due
process protections before probation is revoked: "These requirements are: (1) written
notice of claimed violations, (2) disclosure of adverse evidence, (3) the right to confront
and cross-examine witnesses, (4) a neutral and detached hearing board, and (5) a written
statement by the fact finders as to the evidence relied on and the reasons for revocation."
(People v. Rodriguez (1990) 51 Cal. 3d 437, 441, citing Morrissey v. Brewer (1972) 408
4
U.S. 471, 488-489.) Nonetheless, the due process accorded in a revocation proceeding is
flexible, informal and does not necessitate the full panoply of procedural protections of a
criminal trial. (Black v. Romano (1985) 471 U.S. 606, 612-613; People v. Vickers (1972)
8 Cal. 3d 451, 457-458.)
Appellant was required, as a condition of probation, to obey all laws and
court orders, including the protective orders requiring her to stay away from Jones. The
trial court summarily revoked probation based on the felony information alleging that
appellant violated the law by assaulting Jones with a deadly weapon. Implicit in that
allegation was notice that, by assaulting Jones, appellant also violated the orders
requiring her to stay away from him.2
Appellant does not dispute she was afforded an opportunity to be heard and
present evidence on the assault charge. Her defense was that she was elsewhere at the
time of the alleged attack. Although the jury acquitted appellant of that charge, the trial
court found by a preponderance of the evidence that, in addition to suborning perjury, she
had violated the protective orders. The court stated: "[T]hroughout the years, you
[appellant] have demonstrated a continuing unwillingness to follow a court order. . . .
[R]estraining orders were issued, protective orders were issued prohibiting you from
having contact with the father of your child. At least two or three of them were ordered, I
believe. And each one has been violated at least once." These violations alone were
sufficient to support revocation of probation.
The jailhouse telephone calls between appellant and Abdul-Rahmaan did
not occur until after the information was filed. Evidence of subornation of perjury came
to light when the prosecutor used the recorded conversations to impeach Abdul-
Rahmaan's testimony. Immediately after hearing the conversations, the trial court
advised, and appellant acknowledged, she could be held in violation of probation for
"making telephone calls to a witness which reasonably could be construed to affect their
2 The record does not contain a copy of the information in No. MA057506. It is
possible the information explicitly gave notice of the alleged violation of the protective
orders.
5
proposed testimony." This statement, coupled with appellant's acknowledgment,
provided ample notice the court was going to consider this evidence in deciding whether
she violated probation. (See People v. Felix (1986) 178 Cal. App. 3d 1168.)
Appellant's reliance on People v. Mosley (1988) 198 Cal. App. 3d 1167, is
misplaced. In that case, the petition to revoke probation was based on a charge of rape.
The trial court heard the revocation proceeding concurrently with the jury trial on the
rape charge. While the jury was deliberating, the prosecutor pointed out that abstinence
from alcohol was a probation condition and that uncontradicted testimony showed the
defendant had been drinking on the day of the alleged rape. (Id. at p. 1172.) After the
jury returned a not guilty verdict on the rape charge, the trial court found no clear and
convincing evidence of rape, but revoked probation based on the evidence of alcohol
consumption. (Id. at p. 1173.)
The Court of Appeal determined the defendant had been denied due process
because "[t]he evidentiary phase of the hearing was completed before either Mosley or
the court was aware of the charge which ultimately constituted the basis for revocation.
Mosley had no opportunity to prepare and defend against that allegation. Defense
counsel might well have cross-examined the complaining witness and the officer with a
different purpose had he known that he was defending his client against an allegation of
alcohol consumption. Likewise, counsel may have called defendant as a witness."
(People v. Mosley, supra, 198 Cal.App.3d at p. 1174.)
Here, appellant had notice during the evidentiary phase of the hearing that
her probation could be revoked based on her subornation of perjury in the recorded
jailhouse conversations. The court notified her of the potential violation immediately
after hearing the recorded conversations. At that point, Abdul-Rahmaan had not
completed her testimony and appellant was able to confront and cross-examine her about
the conversations. Appellant also addressed the issue in her own testimony. Unlike in
Mosley, appellant had an opportunity to prepare and defend against the allegation.
Finally, any error was harmless beyond a reasonable doubt given the
overwhelming and undisputed evidence that appellant suborned perjury and violated the
6
protective orders. (Chapman v. California (1967) 386 U.S. 18, 24.) She admitted both
violations when she testified, and also in her post-trial letter to the court. There was
ample evidence to demonstrate a probation violation.
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
Hayden Zacky, Judge
Superior Court County of Los Angeles
______________________________
Jeffrey J. Douglas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C.
Johnson, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney
General, for Plaintiff and Respondent.
8