Opinion
A147341
04-21-2017
THE PEOPLE, Plaintiff and Respondent, v. SAMMY DAVIS MORGAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR317734)
Sammy Davis Morgan appeals from a postjudgment order granting a petition to revoke his postrelease community supervision (PRCS). (Pen. Code, §§ 1203.2, subd. (b), 3455, subd. (a).) He argues substantial evidence does not support the trial court's finding he violated the terms and conditions of his PRCS. We disagree and affirm.
Undesignated statutory references are to the Penal Code.
I. THE PRCS ACT
PRCS is similar to probation or parole. "The Postrelease Community Supervision Act of 2011, adopted as part of the 2011 realignment legislation addressing public safety (Realignment Act), provides for local post-incarceration supervision of less serious offenders released from state prison, transferring their supervision from state parole authorities. (§ 3450 et seq., added by Stats. 2011, ch. 15, § 479.) Thus, among other things, the Realignment Act provides that a defendant sentenced to state prison is 'subject to a mandatory period of supervision following release, either parole supervision by the state (§ 3000 et seq.), or [PRCS] by a county probation department. (§ 3450 et seq.)" (People v. Douglas (2015) 240 Cal.App.4th 855, 863.) "The PRCS Act was enacted to 'improve public safety outcomes' and facilitate certain offenders' 'successful reintegration back into society.' ( . . . § 3450, subd. (b)(5) . . . .) Low-level offenders released from prison are subject to community supervision provided by the probation department of the county to which the person is being released ( . . . § 3451, subd. (a)) . . . . [¶] . . . [¶] 'At any time during the period of [PRCS], if a peace officer has probable cause to believe a person subject to [PRCS] is violating any term or condition of his or her release, the officer may, without a warrant or other process, arrest the person and bring him or her before the supervising county agency . . . .' ( . . . § 3455, subd. (b)(1).) If the supervising county agency determines that intermediate sanctions are not appropriate, the agency shall petition the court pursuant to . . . section 1203.2 to revoke, modify, or terminate PRCS. ( . . . § 3455, subd. (a).) Subdivision (b) of section 1203.2 authorizes the court or parties to bring a motion for modification, revocation, and termination of supervision, 'pursuant to this subdivision.' ( . . . § 1203.2, subd. (b)(1).) The petition must include a written report from the supervising county agency that explains 'the relevant terms and conditions of [PRCS], the circumstances of the alleged underlying violation, the history and background of the violator, and any recommendations.' ( . . . § 3455, subd. (a); see Cal. Rules of Court, rule 4.541(c).)" (People v. Gonzalez (2017) 7 Cal.App.5th 370, 378-379, fn. omitted.)
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Morgan was convicted of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) and receiving stolen property (§ 496, subd. (a)). He was sentenced to three years and eight months in prison. In April 2015, Morgan was released from prison and placed on PRCS. His supervision was scheduled to end on April 11, 2018. Among other terms and conditions, Morgan's PRCS required: "You shall not own, have access to, or have under your control: (a) any type of firearm or instrument or device which a reasonable person would believe to be capable of being used as a firearm or any ammunition which could be used in a firearm; (b) any weapon defined in state or federal statutes, or any instrument or device which a reasonable person would believe to be capable of being used as a weapon."
In November 2015, the Solano County Probation Department filed a petition to revoke Morgan's PRCS. The petition alleged Morgan violated the conditions of his PRCS by making criminal threats, possessing firearms, and testing positive for illegal drugs. Specifically, the petition alleged: "A report was filed with [the] Benicia Police Department . . . on [October 21, 2015] regarding criminal threats by [Morgan]. Photos of [Morgan] with two weapons were provided to [the Benicia Police Department] by the reporting party. [The Benicia Police Department] contacted [Morgan] regarding the photos and he stated they were taken 'months ago.' "
At an evidentiary hearing, held on December 14, 2015, the People proceeded only on the firearms allegation and presented the testimony of one witness—Morgan's probation officer, Donald Kilfoyle. Kilfoyle testified that, in October 2015, he received a Benicia Police Department report regarding a complaint by Morgan's girlfriend, as well as photographs of text messages and firearms. The People's first exhibit was a series of texts and a photograph, showing "what appears to be a firearm with a drum magazine," apparently sent from Morgan's phone. Two additional photographs showed, respectively, an arm holding "what appears to be a Glock pistol" and Morgan pointing "what appears to be an air-style rifle . . . at the camera." Kilfoyle believed the guns in the photographs were real.
On November 9, 2015, Morgan was told he was being arrested for possession of weapons and Kilfoyle showed him all three photographs. Morgan said the guns "were fake," but he did not say anything about the age of the photographs. On cross-examination, Kilfoyle testified no weapons were found during a search of Morgan's home. Morgan's counsel also asked Kilfoyle, "[Y]ou don't know when these pictures were taken?" Kilfoyle answered: "That's correct. [¶] . . . [¶] Other than the police report said they were taken months ago, based on [Morgan's] comment." Kilfoyle had no personal knowledge of when the photographs were taken.
At the conclusion of the evidentiary hearing, the trial court found Morgan violated the terms of PRCS by possessing "anything that a person reasonably believes is capable of being used as a weapon." The court revoked PRCS, ordered Morgan to serve 118 days in jail, with credit for 118 days served (59 actual custody days and 59 days for good time credit), and reinstated PRCS. Morgan filed a timely notice of appeal.
An order revoking and reinstating PRCS is appealable under section 1237, subdivision (b), because it is a postjudgment order affecting the defendant's substantial rights. (People v. Gonzalez, supra, 7 Cal.App.5th at p. 380.) We do not treat the appeal as moot, despite the fact Morgan has already served 118 days in jail, "because the challenged order may yet have ' "disadvantageous collateral consequences" ' " if Morgan is convicted of a new offense. (Ibid.) --------
III. DISCUSSION
The sole issue before us is whether substantial evidence supports the trial court's finding Morgan violated the terms of his PRCS. Morgan contends the evidence was insufficient to show the photographs were taken while he was on PRCS. The trial court's factual findings underlying an order revoking PRCS are reviewed for substantial evidence. (People v. Gonzalez, supra, 7 Cal.App.5th at p. 381.)
The burden of proof in a PRCS revocation hearing is preponderance of the evidence. (See People v. Rodriguez (1990) 51 Cal.3d 437, 447 ["proof of facts supporting the revocation of probation pursuant to section 1203.2(a) may be made by a preponderance of the evidence"]; People v. Kurey (2001) 88 Cal.App.4th 840, 849 [probation revocation].) When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value . . . ." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "[W]e do not reweigh conflicting evidence or determine credibility on appeal." (People v. Butcher (2016) 247 Cal.App.4th 310, 318.)
In his opening brief, Morgan assumes the record includes only two items of relevant evidence—the photographs themselves (which do not include date stamps) and Kilfoyle's testimony he had no personal knowledge of when the photographs were taken. In response, the People point out Kilfoyle also testified the police report indicated Morgan said the photographs were taken "months ago." In his reply brief, Morgan contends, for the first time, this is hearsay that cannot support the trial court's factual finding.
"An officer's testimony to information that he or she obtained from a file or an electronic database, without proof of that information by direct presentation of what the officer looked at in admissible form, is hearsay . . . ." (People v. Douglas, supra, 240 Cal.App.4th at p. 871, fn. 10.) Yet, despite repeatedly raising hearsay objections at other points of the evidentiary hearing, Morgan's trial counsel elicited the "months ago" statement from Kilfoyle without making an objection or motion to strike. Furthermore, even on appeal, Morgan does not raise a hearsay argument until his reply brief, where he also contends he was denied his "right to confront and cross examine the author of the police report . . . [because] there was no evidence that the officer who wrote the police report was unavailable to testify." The merits of Morgan's hearsay and confrontation arguments need not be addressed because they were not preserved for appeal. (Evid. Code, § 353, subd. (a); People v. Eubanks (2011) 53 Cal.4th 110, 142 [failure to object to admission of hearsay forfeits appellate claim such evidence was improperly admitted]; Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [arguments not raised in opening brief need not be considered]; People v. Buford (1974) 42 Cal.App.3d 975, 983.)
In the circumstances of this case, when Morgan had been in prison for several years before his release on PRCS (in April 2015), his admission six months later that the photographs depicting weapons were taken "months ago" is sufficient to prove, under a preponderance of the evidence standard, Morgan possessed or had access to firearms while on PRCS.
IV. DISPOSITION
The finding Morgan violated the terms of his PRCS is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.