People v. Dickens CA3 ( 2023 )

Filed 5/2/23 P. v. Dickens CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
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THE PEOPLE, C096043
Plaintiff and Respondent, (Super. Ct. Nos. P20CRF0342,
P20CRF0214, P20CRF0368,
v. 21CR0040, & 21CR0122)
LEAF JAMES DICKENS,
Defendant and Appellant.
Defendant Leaf James Dickens, while under mandatory community supervision,
entered an employee-only bathroom of a grocery store and disregarded the store
manager’s request to leave. The trial court found that defendant committed a trespass in
violation of his supervision. It reinstated defendant’s mandatory supervision and
sentenced him to 60 days in county jail.
On appeal, defendant raises three claims: (1) there was insufficient evidence of
trespass; (2) he was deprived of due process because he received inadequate notice of his
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violation; and (3) the trial court erred in admitting testimony about a call log that showed
he was told to leave the store before the current offense.
We conclude: (1) there was sufficient evidence of trespass; (2) defendant received
adequate written notice of his violation from the petition for revocation and pretrial
release report; and (3) we need not address the admission of the call log, because the
testimony about the call log was unnecessary to support the trial court’s trespass finding.
The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2022, the trial court imposed a six-year eight-month sentence on
defendant, a portion of which was to be served under mandatory community supervision.
As a condition of the supervision, defendant was required to obey all laws.
While subject to mandatory community supervision, on March 1, 2022, defendant
entered and locked a bathroom in an employee-only area of a grocery store. To enter the
area, defendant had to pass through a door with an employee-only sign. The store
manager asked defendant if he could come out and told him she wanted to make sure that
he was all right. Defendant did not respond. After about 30 minutes, the manager called
the sheriff’s office for help removing defendant from the store. When the sheriff’s
deputy arrived, defendant had already left the store. The deputy found defendant outside
the store and arrested him.
The People petitioned for revocation of mandatory community supervision,
alleging defendant had failed to comply with the terms and conditions of his supervision
because he committed a trespass in violation of Penal Code section 602, subdivision
(m).1 The petition referenced a sheriff’s office report concerning the incident. The
pretrial release report, on the other hand, noted defendant was arrested for violation of
1 Undesignated statutory references are to the Penal Code.
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subdivision (t)(1) after he locked himself in an employee-only bathroom and refused to
leave.
At the revocation hearing, defense counsel argued no trespass occurred because
defendant did not occupy the premises as required in section 602, subdivision (m), citing
People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906. The People responded that
subdivision (o), which prohibits an individual from refusing to leave the property upon
request, also applied. Defense counsel objected, arguing the People gave no notice of
their reliance on this subdivision as a ground for revocation, but he did not seek to
continue the hearing. The trial court stated the matter was “more properly a [section]
602[, subdivision ](o) [violation] based on the facts” and commented that it was a better
practice for the People to “allege the conduct rather than the code section,” as “it can lull
the defense into thinking that they’ve got a basis to beat the allegation . . . because it’s
improperly alleged.” It nevertheless found defendant “commit[ted] a trespass” and
revoked his mandatory community supervision.
Defendant timely appealed.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support a trespass in
violation of section 602, subdivisions (m), (o), or (t)(1). The People agree, as do we, that
there was insufficient evidence of a violation of subdivisions (m) or (t)(1) because
defendant did not occupy the bathroom and had not committed any crimes in the store.
But we conclude substantial evidence supports a trespass under subdivision (o).
A. Standard of Review
A trial court may revoke mandatory supervision if it finds the person under
supervision has committed another offense or otherwise violated the terms and conditions
of supervision. (§ 1203.2, subd. (a).) The prosecution bears the burden to prove the
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grounds for revocation by a preponderance of evidence. (People v. Buell (2017)
16 Cal.App.5th 682, 687.)
On appeal, we review the trial court’s revocation order for abuse of discretion and
the factual findings in support of the order for substantial evidence. (People v. Butcher
(2016) 247 Cal.App.4th 310, 318.) In a substantial evidence review, we consider only
“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.” (People v.
Kurey (2001) 88 Cal.App.4th 840, 848, fn. omitted.) In doing so, we afford “great
deference to the trial court” and resolve all conflicting evidence in favor of the trial
court’s decision. (Id. at p. 848; see id. at p. 849.) “The appellant has the burden of
showing there is no evidence of a sufficiently substantial nature to support the finding or
order.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
B. Section 602, Subdivision (o)
A person commits a trespass under section 602, subdivision (o) by “[r]efusing or
failing to leave land, real property, or structures belonging to or lawfully occupied by
another and not open to the general public, upon being requested to leave by . . . the
owner, the owner’s agent, or the person in lawful possession.”
Here, defendant entered a bathroom in an employee-only area of the store. The
area was closed to the public because it was behind a door with an employee-only sign.
(See People v. Colbert (2019) 6 Cal.5th 596, 607 [members of the public exceed the
physical scope of their invitation when they venture into private back offices, employee
locker rooms, or other interior rooms that are objectively identifiable as off-limits].)
Then he failed to leave the bathroom upon request by the store manager, who was an
employee of the lawful occupant of the property, and he remained there for about 30
minutes. Although, as defendant points out, there was no evidence that the store manager
asked him to leave the employee-only area or the store, the request to leave the bathroom
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satisfied section 602, subdivision (o) because the bathroom was closed to the general
public. Thus, substantial evidence supports the trial court’s trespass finding.
Defendant contends that because he eventually left the store, there was no
substantial evidence of him refusing to leave. But in a substantial evidence review, we
“do not reweigh the evidence” and will uphold a judgment supported by substantial
evidence “even though substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other evidence.” (In re Dakota H.,
supra, 132 Cal.App.4th 212, 228.) Thus, the evidence of defendant eventually leaving
the store is, at best, competing evidence that we do not reweigh and resolve in favor of
the trial court’s decision.
C. Section 602, Subdivisions (m) and (t)(1)
Section 602, subdivision (m) prohibits “[e]ntering and occupying real property or
structures of any kind without the consent of the owner, the owner’s agent, or the person
in lawful possession.” The “ ‘occupy[ing]’ ” element in this subdivision requires proof of
a “nontransient, continuous type of possession.” (People v. Wilkinson, supra,
248 Cal.App.2d Supp. at p. 910.) A stay by nonresidents “from somewhere between one
hour and several hours” at a resident-only clubhouse bathroom did not constitute
“ ‘occupying’ ” under subdivision (m). (In re Y.R. (2014) 226 Cal.App.4th 1114, 1120.)
Here, defendant stayed in the employee-only bathroom for about 30 minutes. Such a
transient stay, as the People rightly concede, did not violate subdivision (m).
Section 602, subdivision (t)(1) prohibits a person from entering private property
after having been informed by a peace officer that the property is not opened to him or
her. This subdivision applies only to a person “who has been convicted of a crime
committed upon the particular private property.” (§ 602, subd. (t)(2).) Here, the record
contains no evidence that defendant had committed any crime at the store. We thus
accept the People’s concession that a trespass under this subdivision was not supported
by substantial evidence.
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Defendant additionally contends that the trial court improperly admitted hearsay
testimony about a sheriff’s office call log and violated his due process rights. But this
testimony was offered to prove only that a sheriff’s deputy asked defendant to leave the
store prior to the current offense. It is relevant only as to section 602, subdivision (t)(1),
which we held inapplicable. We also concluded that there was sufficient evidence
supporting the trespass finding under subdivision (o) without the testimony about the call
log. Thus, we need not address the propriety of its admission.
II
Notice of Violation
Defendant seeks reversal of his supervision revocation, contending he was denied
his due process right to adequate notice.2 We disagree.
The revocation of parole is not part of a criminal prosecution and thus a defendant
is not entitled to the full panoply of the Sixth Amendment rights available in criminal
trials. (Morrissey v. Brewer (1972) 408 U.S. 471, 480.) The defendant nevertheless is
entitled to written notice of the claimed violations under the due process clause of the
Fourteenth Amendment. (Morrissey, at p. 489.) The due process in a revocation
proceeding is “flexible and calls for such procedural protections as the particular situation
demands.” (Id. at p. 481.)
Our Supreme Court extended the due process requirements under Morrissey to
probation proceedings. (People v. Vickers (1972) 8 Cal.3d 451, 458.) The Legislature
later incorporated the protections recognized by Morrissey and Vickers, and their
progeny, into mandatory supervision revocation procedures. (Senate Bill No. 1023
(2011-2012 Reg. Sess.); Stats. 2012, ch. 43, § 2, subd. (b).)
2Defendant also asks us to reverse his conviction. But the record does not show that he
was separately convicted of trespassing.
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Here, defendant received adequate written notice of the conduct that formed the
basis of the revocation, satisfying his due process rights. The revocation petition stated
defendant violated the terms and conditions of his supervision on March 1, 2022, and
referenced a report from the sheriff’s office about the incident. The pretrial release report
also alleged defendant “locked himself in an employee restroom and was refusing to
leave” and stated he “failed to obey all laws in that he was in violation of trespassing.”
These two documents adequately advised defendant that the People sought to revoke his
supervision based on his failure to leave the employee-only bathroom at the grocery store
on March 1, 2022. (See People v. Baker (1974) 38 Cal.App.3d 625, 629 [probationer had
adequate notice of alleged violations contained in supplemental probation report provided
to counsel at the revocation hearing].)
DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
HULL, Acting P. J.
/s/
RENNER, J.
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