People v. Moreno CA4/2 ( 2024 )


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  • Filed 10/10/24 P. v. Moreno CA4/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,                                      E081397
    v.                                                                      (Super.Ct.No. FVI21001747)
    RODOLFO CASTRO MORENO,                                                  OPINION
    Defendant and Appellant.
    APPEAL from the Superior Court of San Bernardino County. Debra Harris,
    Judge. Affirmed.
    Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
    Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Junichi P. Semitsu and
    Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
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    Defendant and appellant Rodolfo Castro Moreno challenges the sufficiency of the
    evidence to support the trial court’s finding he violated probation by keeping a
    pocketknife in his bedroom. Defendant had previously retreated to the bedroom during a
    family argument and then emerged to twice grab kitchen knives, first stabbing a table
    with one so that it stuck in the table. Then, despite a brief interlude, he threw the second
    knife at his 13-year-old granddaughter. She had to duck to avoid the knife. In light of
    these events, we affirm the trial court’s determination that keeping a knife close at hand
    in the bedroom violated defendant’s probation terms.
    FACTUAL AND PROCEDURAL BACKGROUND
    On June 16, 2021, a San Bernardino County Sheriff’s Department deputy
    responded to a domestic disturbance call at defendant’s residence. The call indicated
    defendant kicked a bedroom door off its hinges while yelling at family members and
    striking walls.
    Upon arrival, the deputy found the family had barricaded the front door with a
    large dresser to prevent defendant from reentering the home. One victim, I.C., identified
    himself as defendant’s stepson and reported defendant had a lengthy history of physical
    violence in his 25-year dating relationship with I.C.’s mother (mother hereafter referred
    to as “V1”). Defendant acted aggressively toward family members about once or twice a
    week, and his recent conduct included unpredictable, explosive, and violent behavior.
    The other victims, including defendant’s 13-year-old granddaughter (hereafter
    “V2”), described the incident that led to the police call. An argument arose in the kitchen
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    regarding V2’s exclusion from an upcoming trip. The argument also touched on
    defendant’s “importance within the home,” which, according to V1, V2 questioned. I.C.
    and V1 paid the bills in the home.
    During the argument, defendant “storm[ed]” into his bedroom, then returned,
    grabbed a large kitchen knife, and stabbed it into the wooden kitchen table, where it
    stuck. He then advanced on V2, who managed to grab the knife and retreat to her room,
    hiding it there. V1 had followed defendant, but defendant struck her in the face with the
    back of his hand.
    When V2 came out of her room, defendant was in the kitchen. Defendant grabbed
    another knife, a “large chef’s kitchen knife.” From his position standing close to V1, he
    threw the knife across the kitchen counter at V2. The knife missed her because she
    ducked. The knife struck a lamp hanging over the counter and landed near V2. V2 fled
    to her room and locked the door. Defendant then “hit her door until it broke” and entered
    the room, where V2 hid in her closet. Defendant took V2’s “electronics” to his bedroom.
    I.C., who was in his own room and confined to a wheelchair, called law enforcement.
    Overhearing this, defendant responded, “‘Make sure they come armed.’”
    Defendant was not at the home when the deputy arrived. The victims’ report
    included concerns about defendant’s alcohol use fueling his aggressive conduct.
    The district attorney’s office filed a felony complaint against defendant alleging
    assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count 1; all further
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    statutory references are to this code) and battery on a victim with whom he had a dating
    relationship (§ 243, subd. (e)(1)), count 2).
    On August 11, 2021, pursuant to a plea agreement, defendant pled no contest to
    assault by means likely to cause great bodily injury. (§ 245, subd. (a)(4), count 3.)
    Consistent with the plea, the trial court dismissed counts 1 and 2 and sentenced defendant
    to time served of 20 days in jail, plus 36 months on probation. Defendant’s probation
    terms included the following: “Neither possess nor consume any alcoholic beverages,”
    and “Neither possess nor have under your control dangerous or deadly weapons.”
    Probation compliance checks conducted in-person and by telephone in July and
    August 2022, and in January 2023, resulted in probation officers reminding defendant of
    the alcohol prohibition.
    On March 3, 2023, during a home compliance check, probation officers found a
    pocketknife in defendant’s dresser drawer in his bedroom. Defendant was living in the
    same home where he had thrown a knife at V2 after first withdrawing to his bedroom
    during the argument. The officers also found an empty beer can in the kitchen trash can,
    which defendant denied was his, and five unopened alcoholic beverages in a refrigerator
    in the back yard. The officers arrested defendant for violating probation. A person at the
    residence identified as defendant’s son told the officers that defendant “was not going to
    change his ways.”
    Defendant’s probation officer recommended against revoking his probation at the
    Vickers hearing. (See People v. Vickers (1972) 
    8 Cal.3d 451
    , 460-461 [revocation
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    proceedings].) The trial court agreed. On the officer’s recommendation, the court instead
    reinstated probation under the original terms and conditions, but extended it to expire
    October 26, 2024, rather than as originally set for August 10, 2024. The court also
    conditioned probation on defendant serving 365 days in jail, with custody credits of 91
    actual days and 90 days’ conduct credit.
    In making its ruling, the court explained that it was “on board” with declining to
    revoke probation based on the alcohol that was found. The court noted defendant’s
    limited control in the household and that no reports indicated he was under the influence.
    The court expressly found however: “But he’s in violation of probation. There was a
    knife found.” The court queried, “And when you read the circumstances of the instant
    offense, what gives me confidence that this probationer will not throw another knife at
    another victim?” The court also asked how long defendant had been on probation and
    whether he had previously been imprisoned. Upon learning the answers were “over a
    year” on probation and that “this is his first felony,” the court commented, “That’s good.”
    The court entered the jail and probation extension requirements noted above, and
    defendant now appeals.
    DISCUSSION
    Defendant challenges the sufficiency of the evidence to support the trial court’s
    conclusion he violated probation. Defendant argues, and we agree, that “[a] pocket knife
    is not a ‘dangerous or deadly weapon’ per se.” He argues further, however, that “the facts
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    and circumstances surrounding its possession do not convert it to such” here. Under the
    deferential governing standard, the trial court could conclude otherwise.
    Section 1203.2 invests in the trial court discretion to modify, revoke, or terminate
    probation in the interests of justice if the court, “in its judgment, has reason to believe . . .
    that the person has violated any of the conditions of their supervision.” (Id., subds. (a) &
    (b)(1).) The requisite proof to find a probation violation is a preponderance of the
    evidence. (People v. Rodriguez (1990) 
    51 Cal.3d 437
    , 447.) We review the trial court’s
    decision for substantial evidence, and our review under that standard is deferential.
    (People v. Superior Court (Jones) (1998) 
    18 Cal.4th 667
    , 681.) “In that regard, we give
    great deference to the trial court and resolve all inferences and intendments in favor of
    the judgment. Similarly, all conflicting evidence will be resolved in favor of the
    decision.” (People v. Kurey (2001) 
    88 Cal.App.4th 840
    , 848-849, fns. omitted.)
    The applicable probation condition here barred defendant from “hav[ing] under
    your control dangerous or deadly weapons.” The prohibition has “a plain commonsense
    meaning” that applies in two respects. (In re R.P. (2009) 
    176 Cal.App.4th 562
    , 570
    (R.P.).) First, and most obviously, it precludes probationers “from possessing any item
    specifically designed as a weapon.” (Ibid.) Less obviously, but still “sufficiently
    precise” to provide adequate due process notice, a “‘no-dangerous-or-deadly-weapon’
    probation condition” also “limits . . . possession” of items depending on the person’s
    intent. (Id. at pp. 568-570 [meaning of “‘dangerous or deadly weapon’ is clearly
    established in the law”].) Thus, the prohibition restricts having “under your control” (as
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    stated here) items “not specifically designed as a weapon” where there is intent “to use
    [it] to inflict or threaten to inflict . . . great bodily injury” or death. (Ibid., italics added.)
    Put another way, the Supreme Court has long distinguished “‘between two classes
    of “dangerous or deadly weapons.” There are, first, those instrumentalities which are
    weapons in the strict sense of the word, and, second, those instrumentalities which are not
    weapons in the strict sense of the word, but which may be used as such.’” (People v.
    Graham (1969) 
    71 Cal.2d 303
    , 327 (Graham), abrogated on another ground in People v.
    Ray (1975) 
    14 Cal.3d 20
    , 29, fn. 7 & 32, along with diminished capacity progeny of
    People v. Roy (1971) 
    18 Cal.App.3d 537
    ; see People v. Ricardi (1992) 
    9 Cal.App.4th 1427
    , 1433 [noting Graham’s demise only as to diminished capacity defense].)
    As Graham explained regarding the two classes of dangerous or deadly weapons:
    “The instrumentalities falling in the first class, such as guns, dirks and blackjacks . . . are
    weapons in the strict sense of the word and are ‘dangerous or deadly’ to others in the
    ordinary use for which they are designed . . . .” (Graham, 
    supra,
     71 Cal.3d at p. 327.)
    The court recognized that weapons “falling into the second class, such as ordinary razors,
    pocket-knives, hatpins, canes, hammers,” etc. may be “capable of being used in a
    ‘dangerous or deadly’ manner.” (Ibid., italics added.) The court also recognized
    regarding items in this class that, depending on the evidence, “‘it may be fairly inferred
    . . . that its possessor intended [to hold the item] to use it as a weapon should the
    circumstances require.’” (Id. at p. 328.) Thus, Graham held the evidence there sufficient
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    to find a codefendant’s shoe “could be used in a dangerous or deadly manner,” but
    remanded for proper jury instructions. (Id. at p. 329.)
    It was within the trial court’s sound discretion to make the same finding here.
    Namely that, based on the kitchen incident in which defendant first collected himself in
    his bedroom and then emerged to grab and stab or throw knives, defendant retained his
    knife nearby in his dresser to use it to threaten or throw it to assert himself in a temper.
    As in R.P., this does not make defendant’s no-dangerous-or-deadly-weapon probation
    condition a “‘strict liability prohibition’” that inevitably “punish[es] ‘completely
    innocent’ conduct.” (R.P., supra, 176 Cal.App.4th at p. 569.) As the R.P. court stated:
    “Like any other probationer, if R.P. is later charged with violating the ‘no-dangerous-or-
    deadly-weapon’ probation condition, he is free to contend the item is not a deadly or
    dangerous weapon under the specific circumstances of the alleged violation.” (Ibid.) The
    same is true for defendant.
    Defendant contends the facts regarding his underlying offense “have no bearing on
    how the pocket knife was used here.” To the contrary, the court could reasonably
    determine defendant’s history was relevant. Defendant did not suggest he held the knife
    for self-defense, a hobby, or other valid purpose. (Cf. In re Frank S. (2006)
    
    141 Cal.App.4th 1192
    , 1194-1196 [where juvenile had been attacked two days earlier and
    admitted to officers he had a knife to protect himself from gang members who saw him as
    friendly to a rival gang, evidence did not show he held knife to promote, further, or assist
    a gang].) It is the court’s province to evaluate the probationer’s intent. (§ 1203.2,
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    subd. (a).) We must construe the record in the light most favorable to upholding the
    lower court’s decision, including its credibility determinations. (People v. Ochoa (1993)
    
    6 Cal.4th 1199
    , 1206.) Only “‘“in a very extreme case”’” will we interfere with a
    probation decision. (People v. Urke (2011) 
    197 Cal.App.4th 766
    , 773.) This is not one
    of those cases.
    DISPOSITION
    The trial court’s finding defendant violated probation is affirmed.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    McKINSTER
    J.
    We concur:
    RAMIREZ
    P. J.
    FIELDS
    J.
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Document Info

Docket Number: E081397

Filed Date: 10/10/2024

Precedential Status: Non-Precedential

Modified Date: 10/10/2024