People v. Figueroa CA2/6 ( 2021 )

Filed 3/25/21 P. v. Figueroa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B306288
(Super. Ct. Nos. 18CR05127,
Plaintiff and Respondent, 19CR07458)
(Santa Barbara County)
v.
ELENA MARIE FIGUEROA,
Defendant and Appellant.
Elena Marie Figueroa appeals from the judgment
after the trial court revoked probation and sentenced her to four
years in county jail. She contends: (1) there was insufficient
evidence that she violated the terms of probation, (2) she did not
have adequate notice of the grounds for revocation, (3) the denial
of her motion to continue sentencing violated her right to counsel,
and (4) she was denied the right to be present at sentencing. We
agree with Figueroa’s first contention, and therefore do not
consider her remaining contentions. We reverse.
FACTUAL AND PROCEDURAL HISTORY
In 2018, Figueroa pled guilty to possession of heroin
in county jail (Pen. Code,1 § 4573.6, subd. (a)). The trial court
suspended imposition of sentence and ordered her to serve three
years of formal probation, including 120 days in jail. The
following year, Figueroa pled guilty to second degree burglary
(§§ 459, 460, subd. (b)), and admitted that she had violated the
terms of probation in her 2018 case. The court suspended
imposition of sentence and ordered her to serve three years of
formal probation for her burglary conviction. For her probation
violation, it ordered her to serve 180 days in jail. It then
reinstated probation in that case.
In 2020, prosecutors charged Figueroa with
attempted residential burglary (§§ 664/459, 460, subd. (a)). They
also alleged that she had violated the terms of probation imposed
in her two previous cases by committing that crime. Figueroa
pled not guilty to the attempted burglary charge and denied the
probation violation allegation.
The trial court held a combined preliminary hearing
on the attempted burglary charge and hearing on the probation
violation allegation. Officer Antonio Montojo was the sole
witness. Prosecutors elicited much of his testimony to support
the attempted burglary charge through the admission of hearsay.
(See § 872, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d
1063, 1070-1071.) Figueroa objected to his testimony to the
extent it was proffered on her alleged probation violations. The
trial court agreed, and excluded the testimony for purposes of
that hearing. (People v. Quarterman (2012) 202 Cal.App.4th
1280, 1296.)
1 Statutory references are to the Penal Code.
2
For purposes of the probation violation hearing,
Officer Montojo testified that he was dispatched to an RV park.
He obtained video which showed Figueroa standing near the rear
of an RV holding a sweater in one hand and “what appeared to be
a pocketknife and/or pick in the other.” Officer Montojo inspected
the roof of the reporting party’s RV and saw that “some plastic
pieces . . . had been tampered with” on an air vent. There were
also “pry markings” on the keyhole in the RV’s door.
Based on this testimony, the trial court found
Figueroa in violation of the terms of her probation.
DISCUSSION
Figueroa contends the judgment should be reversed
because there was insufficient evidence that she violated the
terms of her probation by attempting to commit residential
burglary. We agree.
A trial court may revoke probation if it “has reason to
believe . . . that the [probationer] has violated any of the
conditions of their supervision, has become abandoned to
improper associates or a vicious life, or has subsequently
committed other offenses.” (§ 1203.2, subd. (a).) “‘The facts
supporting revocation . . . may be proven by a preponderance of
the evidence.’ [Citation.]” (People v. Galvan (2007) 155
Cal.App.4th 978, 982 (Galvan), alterations omitted.)
We review an order revoking probation for
substantial evidence. (People v. Urke (2011) 197 Cal.App.4th 766,
773.) “Under that standard, our review is limited to the
determination of whether, upon review of the entire record, there
is . . . evidence of solid value, contradicted or uncontradicted,
[that] will support the trial court’s decision.” (People v. Kurey
(2001) 88 Cal.App.4th 840, 848.) “[W]e give great deference to
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the trial court[,] and resolve all inferences and intendments in
favor of the judgment.” (Id. at pp. 848-849.) “[A]ll conflicting
evidence will be resolved in favor of the decision” to revoke
probation. (Id. at p. 849.) Only “‘“in a very extreme case”’” will
we interfere with that decision. (Urke, at p. 773.)
Here, Officer Montojo testified that he observed that
an RV’s air vent had been “tampered with” and that its keyhole
had some “pry markings” around it. But prosecutors presented
no evidence as to when the RV had sustained this damage; it
could have been months or years earlier. Prosecutors also
presented no evidence that the damage was of a type that could
have been inflicted by a pocketknife or pick. And prosecutors
presented no evidence as to when—or even where—the video
footage showing Figueroa holding a similar-looking instrument
had been taken. In short, the admissible evidence showed only
that an RV had been damaged at some unknown date and that
Figueroa was filmed on an unknown date at an unknown place
holding a sharp object while standing behind an RV. Even under
the lower preponderance-of-the-evidence standard, this is an
insufficient basis on which to revoke probation. (See, e.g.,
Galvan, supra, 155 Cal.App.4th at pp. 982-983 [reversing
probation revocation decision due to lack of evidence as to when
defendant reentered the country]; see also People v. Balkin (2006)
145 Cal.App.4th 487, 492-493 [defendant erroneously convicted of
failing to register as sex offender within five days because no
evidence showed when he moved into the city].)
Our dissenting colleague takes us to task because
“everyone . . . knows” that Figueroa is guilty. But courts, like
juries, are supposed to limit themselves to the evidence. Here,
our colleague relies too heavily on “facts” not admitted into
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evidence on the probation violation, or on outright speculation.
As noted above, the court conducted a combined preliminary
hearing and probation violation hearing. Some evidence was
admitted for the preliminary hearing only; so was excluded from
consideration in the probation violation hearing. For purposes of
the probation violation, there was no evidence that Figueroa was
observed or videotaped on the roof of the victim’s RV (or any
other RV). There was no evidence that Figueroa made any
statements, much less admissions, to Officer Montojo at any time.
There was no evidence that the pry marks were “fresh” or that
the victim’s key would not work “for the first time, after the
tampering of the front lock.” There was no evidence that
Figueroa was or had ever been present at the victim’s RV, other
than an undated photo of her standing next to an unidentified RV
on an unknown date. Our opinion does not exalt “form over
substance”; it instead exalts facts over speculation, because facts
matter.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
I concur:
PERREN, J.
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YEGAN, J., Dissenting.
I respectfully dissent. At this violation of probation
hearing in two separate felony cases, the trial court factually
found that appellant committed, not the charged attempted
residential burglary, but a trespass by walking on the roof of the
victim’s motor home and/or vandalism to the roof and the front
door lock to the motor home. The fair inference is that someone
was trying to force entry as there were pry marks on both the roof
vent and the front door lock. The victim called 911 and the police
responded. The objection to the substance of the 911 call was
overruled. The substance of the 911 call is some evidence of a
contemporaneous attempt to commit a residential burglary.
How is appellant connected to this event? The victim
videotaped either appellant on the roof, or right next to his
motorhome, holding a pry tool. The majority does not explain
why the victim’s videotape, shown to the officer at the scene, and
attested to by the officer, is not some evidence showing that
appellant was, at the very least, trespassing on the roof or near
the motorhome. This video is not hearsay. Reversal of a
violation of probation finding “‘“is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial
evidence to support’” . . . . the [finding].’” (People v. Manibusan
(2013) 58 Cal.4th 40, 87.)
The victim told the officer that he saw appellant on the
roof. This is hearsay. But, appellant herself told the officer at
the scene that she was the owner of the motorhome! This is an
admission and it connects her to the motorhome and the 911 call.
This was properly received into evidence pursuant to the well-
recognized exception to the hearsay rule. Coupled with the
officer’s observations of a forcible attempt to enter the
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motorhome, the victim’s statement to the officer seems
particularly trustworthy. Why would he report the incident if he
were not the owner who witnessed appellant attempting to gain
entry? Trustworthy hearsay is admissible to show a violation of
probation. (See People v. Buell (2017) 16 Cal.App.5th 682, 689;
People v. Maki (l985) 39 Cal.3d 707, 715-717.) And, for the first
time, after the tampering of the front lock, the victim’s key would
not open the lock. The officer saw this. This is not hearsay. This
is some evidence of a recent attempt of forcible entry.
As indicated in the majority opinion, the Court of Appeal
should give great deference to the trial court’s decision to revoke
probation. And it recites the rule that we draw inferences in
favor of the revocation order. (Maj. opn. at p. 4.) The majority
opinion cites these rules rule but then does not apply them. In
fact, it does the opposite. It draws the inference that the officer
cannot tell a fresh pry mark from an ancient one. It draws the
inference that these pry marks were not made by the tool that
appellant was holding. It draws the inference that the date of the
video is unknown. These are not reasonable inferences in favor of
the revocation order. The majority should “connect the dots,” i.e.,
use rational inferences to associate one idea with another to find
the “big picture.” (See People v. Bohana (2000) 84 Cal.App.4th
360, 368.)
Everyone, even the majority, knows that appellant was, at
the very least, on the roof or trespassing near the motorhome
because she told the arresting officer, perhaps mistakenly, that
this motorhome belonged to her! She was so adamant that she
previously told the victim to call the police. These statements are
also admissions. There was and is “reason to believe” that
appellant was in violation of the probation previously granted.
2
This meaningless reversal is an exaltation of form over
substance. It will result in no good as the People may now retry
the violation of probation matter. It is a certainty that they can
prove the violation of probation matter simply by calling the
victim as a witness. He was not originally called, probably as a
result of the covid shutdown. The instant combined preliminary
hearing/violation of probation was a “test case” for remote video
hearings in the Superior Court in Santa Barbara county. And, if
the majority is correct, the Superior Court has failed the test.
There was no miscarriage of justice here. I would affirm the
order here under review.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
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Michael J. Carrozzo, Judge
Superior Court County of Santa Barbara
______________________________
Tracy Macuga, Public Defender, and Matthew J.
Speredelozzi, Deputy Public Defender, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr. and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.