People v. Mendez CA2/5

Filed 8/7/23 P. v. Mendez CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B323190
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 2PB01479)
v.
FRANKY MENDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jeffrey S. Cohen-Laurie, Judge. Affirmed.
Heather E. Shallenberger, under the appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Gabriel Bradley, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant and appellant Franky Mendez appeals from the
order revoking and reinstating his post-release community
supervision (community supervision). We conclude the evidence
was sufficient to support the trial court’s finding defendant
willfully violated the terms of release, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 4, 2021, defendant was convicted by plea of
felony domestic violence (Pen. Code, § 273.5, subd. (a)) and
sentenced to the low term of two years in prison.1
On April 13, 2022, he was released from prison on
community supervision, and transported by the Department of
Corrections and Rehabilitation to the Pomona Valley area
probation office. There, he met with Deputy Probation Officer
(DPO) Noboa. Defendant was uncooperative and refused to
complete the orientation process, claiming he was not under the
jurisdiction of community supervision. He left the probation
office.
That same day, DPO John Roque, from the Alhambra area
office, filled out a “Desertion Report” setting forth the above
events and recommending community supervision be revoked.
The next day DPO Roque filed a petition for revocation. The court
issued an arrest warrant.
Just over a week later, on April 22, 2022, DPO Roque filed
a supplemental report. He set forth the following: On April 19,
2022, an LAPD officer attempted to conduct a traffic stop on a
vehicle defendant was driving, which the officer determined had
1 According to the pre-conviction probation report, in the
course of an argument defendant beat up his then-pregnant
girlfriend.
2
been stolen. Defendant led the officer on a vehicle pursuit,
crashed his vehicle, then fled into a resident’s yard and hid. He
was ultimately located by a canine unit, and arrested for felony
evading. (Veh. Code, § 2800.2.)
The trial court recalled the arrest warrant and remanded
defendant without bail, setting the community supervision
revocation matter for an arraignment. Although there were a
number of continuances, defendant eventually denied the
allegations, and waived a probable cause hearing. The matter
was ultimately set for hearing on the revocation petition on
July 27, 2022.
On the day of the hearing, defendant filed a motion to
exclude DPO Roque’s testimony as to DPO Noboa’s observations
when defendant reported and was allegedly uncooperative. He
argued, “Deputy Noboa is the percipient witness and report
author who could best testify to the allegations. Testimony by
any officer other than Deputy Nob[o]a would be cursory and
would deny [defendant] the opportunity to impeach or refute the
evidence.” He went on to argue that it would be “easy” for the
prosecution to bring Deputy Noboa to court, and suggested the
right to confrontation meant “the court must compel the
appearance of the declarant.”
At the hearing, defense counsel argued the motion, and
again suggested that DPO Noboa “should be cross-examined to
satisfy due process and, you know, this is just a regular probation
officer who could have been easily subpoenaed to court today.”
The prosecutor responded that DPO Roque should be permitted
to testify to what he read in DPO Noboa’s report, but, in any
event, “[I]f counsel would like me to subpoena the DPO that was
present, I have no problem with that, but . . . I received the
3
motion today, so I have not had the opportunity to even consider
that.” When defense counsel continued to argue the
inadmissibility of DPO Roque’s testimony, the court asked, “in
the interest of efficiency” if it just “make[s] sense to set this for a
date when we can have [DPO Noboa] here.” Defense counsel
responded, “I guess we would object.” On the basis that it was
the “last day,” counsel declined to stipulate to a further
continuance, and the prosecutor chose to proceed with DPO
Noboa.2
The hearing went forward. DPO Roque was the only
witness. He testified that a report to the probation office is not
considered a “full reporting” unless the individual receives the
instructions, rules and regulations of probation. The individual
also must obtain his or her next reporting date in order for a
report to be considered complete. Anything short of that is a
failure to report. DPO Roque testified to DPO Noboa’s report of
her encounter with defendant when he first appeared at the
probation office on April 13. Defendant was uncooperative and
argumentative. He refused to sign the necessary paperwork.3
2 There is no precise number of days within which a hearing
to revoke community supervision must be held; the statute
requires it be held only within a “reasonable time.” (Pen. Code,
§ 3455, subd. (c).)
3 In cross-examination, DPO Roque admitted that, at one
point, DPO Noboa’s report indicates that defendant stated he
would sign anything presented. This appears to have been a
typographical error in DPO Noboa’s report. DPO Roque read
from DPO Noboa’s report that defendant, “stated he would sign
any documents presented or would not remain seated for the
completion of assessment.” DPO Roque went on to say that,
earlier in the report, it says, “He refused to sign any forms and
4
DPO Roque independently confirmed this with probation
records. For example, had defendant completed the initial report,
DPO Noboa would have made entries in the system related to an
assessment of his “criminogenic need,” but no such entries were
present. Nor was defendant given a date to next report. ~(RT
32)~
Defendant did not offer any evidence in his defense, but his
counsel’s cross-examination of DPO Roque attempted to elicit
testimony that defendant had experienced some sort of mental
health issue that rendered his failure to report not willful. DPO
Roque agreed that DPO Noboa at one point indicated that
defendant “appeared mentally unstable.” He also agreed that
defendant had been transported to the probation office directly
from prison, and that this “usually,” but not always, indicates
that “there is a mental health issue.”4
Defense counsel argued that, even considering the hearsay
evidence, the prosecution failed to meet its burden. Counsel
suggested that defendant had a “mental health breakdown,” but
the Probation Department did not have sufficient mental health
personnel to assist him with intake. The trial court concluded
the prosecution had met its burden of establishing, by a
preponderance of the evidence, that defendant failed to report.
repeatedly interrupted any attempts to explain any answer why
he was at the Pomona Office.” Defendant did not sign any
document at his meeting with DPO Noboa.
4 On redirect, the prosecutor elicited DPO Roque’s testimony
that defendant “does not have an X85 mental health condition,”
but the term was not explained.
5
The court specifically added, “The defense raised the possibility of
a mental health breakdown, but I don’t have evidence of that.”
The court revoked and reinstated community supervision,
with 180 days in jail, with credit for 90 actual days and 90 good
time credits. Upon release, defendant was ordered to report to
the Pomona Valley area probation office.5
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant does not directly challenge that he
failed to report. Instead, he argues the evidence was insufficient
to support the court’s implied finding that defendant’s failure to
report was willful.6
1. Standard of Review
The parties agree that the standards regarding probation
violations apply to community supervision violations. “The
5 At this point, defendant exclaimed, “To probation? I
finished my time.” The court confirmed he was ordered to report.
Defendant stated, “I’m not going to report over there. You hear
what I’m saying? That’s what the fuck I’m saying.” The court
warned defendant to stop talking or he would be removed from
the courtroom. Defendant exclaimed, “I don’t give a fuck about
Pomona” and was ordered removed.
6 Appellant’s Reply Brief states: “Because Officer Noboa’s
notes convey what she witnessed and heard that day, only she
could testify on the issue of whether appellant’s failure to
complete the reporting process was willful. Thus, even though
Officer [Roque] could testify that probation’s computer system
verified Officer Noboa’s notes that appellant failed to complete
the reporting process, this alone does not establish that appellant
willfully violated [community supervision].”
6
burden of proof at a probation violation hearing is by a
preponderance of the evidence.” (People v. Abrams (2008)
158 Cal.App.4th 396, 400.) However, the evidence “must support
a conclusion the probationer’s conduct constituted a willful
violation of the terms and conditions of probation.” (People v.
Galvan (2007) 155 Cal.App.4th 978, 982.) It constitutes an abuse
of discretion to revoke a defendant’s probation for something
caused by circumstances beyond his control. (Id. at p. 983
[defendant could not report because he was deported to Mexico
immediately upon release from jail].)
2. The Evidence is Sufficient
Here, the record shows that, upon his initial release from
custody, defendant was transported to the Pomona probation
office, but he did not complete his assessment. Defendant
acknowledges that admissible evidence supports this conclusion,
but argues the evidence is insufficient to establish that his failure
to complete the assessment was willful under People v. Galvan,
supra, rather than the product of a mental health issue. He
supports this position with two arguments. First, he suggests
that DPO Roque was “unable to explain with certainty the
conduct witnessed” by DPO Noboa, and that, standing alone,
DPO Roque’s testimony was “an improper substitute for Officer
Noboa[‘s] live testimony regarding her notes detailing appellant’s
behavior . . . .”7 Second, he argues that, to some extent, DPO
7 Defendant’s opening brief ends with the further argument
that “had Officer Noboa been available for cross-examination,
this would have added to the truth-furthering process because
the defense could have elicited testimony that any failure on
appellant’s part to cooperate was more likely due to a mental
health issue, as Officer Noboa surmised, and not willful conduct.”
7
Noboa’s notes – and DPO Roque’s testimony from them –
constituted inadmissible hearsay and should have been excluded.
(See People v. Abrams, supra, 158 Cal.App.4th at page 405
[hearsay regarding routine matters such as making and keeping
of probation appointments is admissible in revocation hearings,
while statements made to a probation officer by victims or
witnesses may be too testimonial to be admissible without
running afoul of due process protections].)
We need not consider the hearsay argument. The
concededly admissible evidence demonstrates defendant was
transported to the probation office, commenced his meeting with
DPO Noboa, and left before fully reporting. He never returned to
the office, nor contacted the office to complete his initial report.
That is sufficient to support the trial court’s conclusion that
defendant’s failure to report was willful. Defendant relies on
DPO Noboa’s observation that, in addition to being
uncooperative, defendant appeared mentally unstable. That
observation alone is insufficient to establish that defendant’s
conduct was not willful or undermine the trial court’s factually
supported conclusion that defendant’s lack of cooperation was
volitional.
To the extent defendant now suggests DPO Noboa’s testimony
would have been helpful to him, we observe that the prosecutor
offered to subpoena DPO Noboa and the court offered to continue
the hearing for that purpose, but defendant objected. In any
event, defendant’s argument as to what DPO Noboa would have
added to her report is speculative.
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DISPOSITION
The order revoking and reinstating community supervision
is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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