People v. Law CA2/7

Filed 5/5/21 P. v. Law CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B302247
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA468851)
v.
LEO LAW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry A. Bork, Judge. Affirmed.
Melissa J. Kim, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________
Leo Law appeals the trial court’s order revoking and
terminating probation and ordering execution of his suspended
six-year state prison sentence for first degree burglary after the
court found Law had violated the conditions of probation by
possessing a firearm. No arguable issues were identified
following review of the record by Law’s appointed appellate
counsel. We also have identified no arguable issues after our own
independent review of the record and analysis of the contentions
presented by Law in two supplemental briefs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Law pleaded no contest to first degree burglary (Pen. Code,
§ 459)1 on November 16, 2018. Pursuant to a negotiated
agreement, the trial court sentenced Law to six years in state
prison, suspended execution of the sentence and placed Law on
formal probation for a period of five years. Among the conditions
of probation, Law could not possess a dangerous or deadly
weapon, including a firearm.
1. Law’s Arrest for Violating Probation and the Setting of a
Formal Probation Revocation Hearing
On May 1, 2019 Law was arrested for possessing a firearm
(§ 29800, subd. (a)(1)) and violating his probation (§ 1203.2).
Five days later the trial court summarily revoked Law’s
probation and ordered a supplemental probation report. A series
of continuances ensued.
The trial court initially continued the matter to May 28,
2019 to allow for the filing of the supplemental report. Defense
counsel did not object. On May 28, 2019 the matter was
continued to June 4, 2019 because defense counsel was engaged
1 Statutory references are to this code.
2
in trial. On June 4, 2019 defense counsel requested a hearing
date of June 18 to allow time for discovery in light of the
prosecutor’s intention to seek imposition of the suspended
sentence. On June 18, 2019 defense counsel indicated she was
still waiting for evidence of Instagram photographs the
prosecutor anticipated receiving in the next five days. The trial
court set the formal probation violation hearing for June 24,
2019. On June 24, 2019 defense counsel requested a continuance
to July 9, 2019, which the trial court granted.2
On July 9, 2019 the prosecutor requested a continuance
because its key civilian witness, Ciara Parham, failed to appear
despite being subpoenaed. The trial court found good cause for a
short continuance, issued a bench warrant hold for Parham and
continued the hearing to July 16, 2019. When Parham did not
appear on July 16, 2019, the trial court released the bench
warrant and set Parham’s bail in the amount of $50,000. The
prosecutor requested the matter trail until the next day. At this
point Law objected. The trial court recognized that Law had
“waiv[ed] a good deal of time to get his hearing, but there is good
cause given a witness is not here who was ordered to be present.”
On July 17, 2019 Parham still did not appear. That
morning investors spoke with Parham’s father, who reported he
did not know where she was. The prosecutor explained to the
court that he had spoken to Parham on her original appearance
date. She had acknowledged receipt of the subpoena but stated
she did want to come to court because she had been threatened.
The prosecutor explained he could not confirm who had
threatened Parham but added he had “no reason to doubt her,”
2 The transcript from the June 24 hearing is not part of the
record on appeal.
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and she sounded “very credible.” The prosecutor also indicated
he was still waiting for the results of an analysis of DNA found
on the gun at issue.
Defense counsel stated Law was ready and willing to
proceed absent Parham’s testimony and the DNA results, noting
he had been in custody since May 1 and had requested to have
his hearing “over and over again.” If there was to be another
continuance, Law requested that he be released on his own
recognizance. However, defense counsel did not expressly object
to the continuance. The court declined to release Law or set bail
given the seriousness of the issues presented by Law’s criminal
history. The trial court set a new hearing for July 31, 2019.
2. The Evidence of Law’s Violation and the Court’s Ruling
Law’s formal probation violation hearing began on July 31,
2019. The prosecution’s theory was that Law had been in
possession of a firearm found in the vehicle he was driving
following a traffic stop.
The prosecution called Parham as its only witness.3
Parham testified she and two other passengers were riding with
Law in an SUV when he was pulled over for a traffic violation.
During the stop a firearm was found in the vehicle. Law was
arrested.
That afternoon detectives showed Parham a photograph of
Law with a firearm lying on his chest. She recognized the
photograph because she previously had seen the same
photograph on Law’s Instagram. Parham also recognized the
firearm in the photograph as the firearm that had been found in
3 Parham, who had been arrested pursuant to the bench
warrant, stated she was afraid to testify and appeared only
because she was compelled to do so.
4
the vehicle during the traffic stop. Parham testified that
approximately one month before the traffic stop Law had shown
her a black-colored firearm, which he carried in a brown-colored
designer backpack. Parham acknowledged she was not familiar
with firearms but testified the firearm Law showed her looked
“[e]xactly like the [one in] the photo.” Parham explained that on
the day of Law’s arrest she and Law were in an intimate
relationship but that approximately two weeks later they broke
up because “he was already married.”
Following Parham’s testimony defense counsel requested
several additional continuances to gather additional information
and due to her unavailability. When the hearing resumed
approximately two months later, Law testified in his own
defense. Law confirmed he knew it was against the terms of his
probation to possess a firearm. He denied ever possessing a
firearm while on probation and denied he had shown Parham a
firearm in a brown-colored designer backpack. On the day of his
arrest Law was driving to his probation officer’s office to pay part
of his restitution fine. The vehicle he was driving belonged to
Parham. Law said he learned following his arrest that the
vehicle had been reported stolen. Law was unaware a firearm
was in the backseat of the vehicle. Law testified the photograph
of him with a firearm had been taken in 2013 or 2014 and
insisted the original photograph did not have “the firearm being
posted on me.” Law pointed out that social media posts were
typically dated but the purported Instagram photograph was
undated. He surmised the picture had been digitally altered to
include a firearm.
Following counsel’s arguments, the trial court took the
matter under submission. The court issued its ruling on
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October 29, 2019, finding the prosecution had proved by a
preponderance of the evidence that Law had a firearm in his
possession in violation of the terms of his probation. The court
explained its decision turned on the credibility of the two
testifying witnesses. The court considered Parham’s possible
motivation to lie following the termination of her relationship
with Law, but still found her to be credible. The court found Law
to be less credible and, in particular, did not credit his
explanation the photograph of him with a firearm had been
digitally altered. The court revoked and terminated probation
and imposed the previously suspended six-year state prison
sentence.
Law filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Law in his appeal. After
reviewing the record, counsel filed a brief raising no issues.
Appointed counsel advised Law on July 27, 2020 that he may file
a supplemental brief raising any grounds of appeal, contentions
or arguments he wanted this court to consider within 30 days.
We provided a similar notice to Law on August 10, 2020.
On September 17, 2020 we received a two-page typewritten
supplemental brief in which Law, noting he had been held in
custody for 92 days from arrest until the start of his formal
probation violation hearing, argued his due process right to a
timely hearing had been violated. On January 7, 2021 we
received a five-page handwritten supplemental brief in which
Law argued the trial court abused its discretion in terminating
probation because the prosecution had failed to prove he violated
a condition of probation by a preponderance of the evidence.
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As to Law’s first argument, under the circumstances here,
the 92-day delay was not unreasonable. (See People v. Johnson
(2013) 218 Cal.App.4th 938, 943 [appellant failed to demonstrate
“a lapse of approximately three months, at least one of which was
attributable to his own request for a continuance” constituted an
unreasonable delay]; In re Williams (1974) 36 Cal.App.3d 649,
653 [delay of two months and 25 days between petitioner’s date of
arrest and parole revocation hearing not an unreasonable delay].)
With one exception all the continuances were made at the request
of, or without objection from, Law’s counsel. (See People v.
Wilson (1974) 40 Cal.App.3d 913, 915 [absent objection, consent
to continuances presumed in the context of a right to a speedy
trial]; County of Los Angeles v. Surety Ins. Co. (1989)
207 Cal.App.3d 1126, 1133 [the failure to object to a discretionary
ruling made by the trial court at the time it is made generally
forfeits any challenge to that ruling on appeal].) As for the one-
day continuance on July 16, 2019, good cause existed because a
witness who had been ordered to appear failed to do so
notwithstanding the diligent efforts of the prosecutor to secure
her presence. (Cf. § 1050, subd. (b) [any party seeking “[t]o
continue any hearing in a criminal proceeding” must demonstrate
good cause]; Johnson, at p. 942 [good cause “requires at a
minimum that the party seeking continuance demonstrate it has
prepared for the hearing with due diligence”]; People v. Ferrer
(2010) 184 Cal.App.4th 873, 879 [same].)
Law’s second argument challenging the sufficiency of the
evidence to find he had violated a condition of probation fails to
recognize the limited role of a reviewing court. (See 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
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trial court in the matter of denying or revoking probation”’”].)
The trial court’s ruling was based on its finding that Parham’s
testimony was credible. Parham had previously seen the
photograph of Law with a firearm, shown to her by detectives
following Law’s arrest, on Law’s Instagram and recognized the
firearm in the photograph as the same one Law had displayed a
month earlier. Parham identified the firearm found during the
traffic stop as the one from the photograph. That testimony,
although contradicted by Law, adequately supported the finding
Law had violated his probation. (See People v. Covarrubias
(2016) 1 Cal.5th 838, 890 [all reasonable inferences from the
evidence are presumed in support of the decision; “[i]f the
circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding”]; People v. Barnwell (2007) 41 Cal.4th 1038,
1052 [“[e]ven when there is a significant amount of
countervailing evidence, the testimony of a single witness that
satisfies the [substantial evidence] standard is sufficient to
uphold the finding”].) Law does not dispute that possession of a
firearm was a violation of the terms of his probation and a proper
basis to revoke and terminate his probation and impose the
previously stayed state prison sentence.
We have examined the record and are satisfied Law’s
appellate counsel has fully complied with the responsibilities of
counsel and no arguable issue exists. (Smith v. Robbins (2000)
528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-
119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
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DISPOSITION
The order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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