P. v. Cavers

Filed 2/10/10 P. v. Cavers CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Levarn Cavers, Jr. appeals from a judgment revoking and reinstating his probation and sentencing him to one year in the county jail.[1] He contends the evidence was insufficient to support a probation violation. We affirm.

I.
BACKGROUND

On September 6, 2007, appellant pleaded guilty to one count of second degree automobile burglary in exchange for a suspended sentence and three years of probation. (Pen. Code,  459, 460, subd. (b).)[2] On October 28, 2008, a motion to revoke appellants probation was filed, after appellant was arrested on October 25, 2008 for assault with a deadly weapon ( 245, subd. (a)(1)), robbery ( 211), battery ( 243, subd. (a)), and animal cruelty ( 597, subd. (a)). A contested probation revocation hearing was held on May 8, 2009.

At the hearing, Betsy Waldinger testified that on the evening of October 25, 2008, around 11:00 p.m., she was sitting on the ground, next to a garbage can, near the corner of Valencia Street and 16th Street in San Francisco; Waldingers kitten was in a nearby pile of clothes. Appellant was sitting on the other side of the garbage can, trying to sell an aquarium tank. At some point, a man came over, sat down next to Waldinger and began conversing with her. The man had a bottle of Coca-Cola and a bottle of liquor with him, and he shared both beverages with Waldinger. When the man got up to leave, he took the liquor with him, but left the soda with Waldinger. Waldinger briefly picked up the soda, then set it back down. A few minutes later she reached to pick up the soda again, and appellant grabbed it. When Waldinger asked for her soda back, appellant replied that it was not her soda. She explained that the soda indeed belonged to her because the man had specifically left it behind for her. Appellant then approached Waldinger and began wrestling with her over the soda bottle. Appellant punched Waldinger in the throat, knocking her to the ground.[3]

Mark Walton, an acquaintance of Waldinger, had been nearby during the altercation between Waldinger and appellant. Once the situation escalated to physical violence, Walton intervened. When Walton asked appellant what he was doing, appellant pulled out a box cutter and told Walton, Hey, Ill stab you with this thing.  Appellant then came at Walton and jumped on him with the box cutter. Walton grabbed defendant and threw him off into the street. The police arrived soon thereafter.

Walton told the responding police officer that appellant tried to  cut  him. When Walton pulled up his shirt, he discovered he was bleeding. Walton sustained a foot-long laceration across his chest, which extended from just above his left nipple to just below his right nipple.

San Francisco Police Officer Lauro Baca took appellant into custody. Before patsearching appellant, Baca asked him if he had any weapons; appellant admitted that he had a box cutter with him. Baca retrieved the box cutter, and confirmed that it was equipped with a razor cutting blade, which was retracted. Baca did not remember seeing any blood on the box cutter blade.

Appellant testified at the hearing, and he admitted to wrestling with Waldinger over the soda bottle and to pulling a box cutter on Walton. However, appellant denied hitting Waldinger and denied cutting Walton with the box cutter. Appellant testified that he grabbed the soda bottle from Waldinger to return it to its rightful owner.[4] As appellant wrestled with Waldinger for the soda bottle, Walton suddenly entered the fray and pushed appellant. Appellant explained that he retrieved the box cutter from his nearby messenger bag after he engaged in a shoving match with Walton. Appellant said that he showed the box cutter to Walton to let him know that he would defend himself if Walton attacked him again.

At the conclusion of the hearing, the trial court revoked and reinstated appellants probation, and ordered appellant to serve one year in the county jail.

II. DISCUSSION

Appellant asserts that the trial court abused its discretion in modifying his probation by requiring him to serve a one-year term in the county jail.

Specifically, he contends the evidence was insufficient to support a finding that he violated the terms and conditions of his probation. We disagree.

Pursuant to section 1203.2, subdivision (a), a court is authorized to revoke probation if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . . The standard of a preponderance of the evidence is used when determining whether a probation violation has occurred. (People v. Rodriguez (1990) 51 Cal.3d 437, 445-446.) Accordingly, evidence which is insufficient or inadmissible to prove guilt at trial nevertheless may be considered in determining whether probation should be revoked. (In re Coughlin (1976) 16 Cal.3d 52, 58.) Revocation of probation lies within the broad discretion of the trial court. [Citation.] Absent abuse of that discretion, an appellate court will not disturb the trial courts findings. [Citation.] (People v. Self (1991) 233 Cal.App.3d 414, 417.)

The record shows appellant acted as the aggressor when he hit Waldinger in the throat and threatened Walton with a box cutter. Contrary to appellants assertion, either one of these acts constituted sufficient evidence to support the trial courts finding that he had violated the probation condition that he obey all laws.

Appellant was arrested for, among other things, simple battery under section 243, subdivision (a), which does not require the infliction of an injury. Rather, all that is required is the willful and unlawful use of force or violence upon the person of another. ( 242.) Nevertheless, appellant maintains that proof of a serious bodily injury was required because the supplemental probation report states that [he] . . . committed a felony violation of . . . section 243. This specious argument is not well taken. The probation report lists the battery offense as follows: 243(A) PC/F. Although the probation report references an F, indicating a felony offense, the particular subdivision listed is, by its very terms, a misdemeanor offense. Specifically, subdivision (a) of section 243 provides as follows: A battery is punishable by a fine not exceeding two thousand dollars ($2,000) or by imprisonment in a county jail not exceeding six months or by both . . . . (See  19.) The inadvertent insertion of the F next to the subdivision (a) offense did not transform this misdemeanor into a felony or otherwise deprive appellant of reasonable notice regarding the charged offense. The record consistently references that appellant was arrested and booked for violating subdivision (a). Tellingly, there is no mention in the record that appellant was arrested for violating subdivision (d), which adds the requirement that the battery result in serious bodily injury and sets forth the punishment for felony battery (see, e.g.,  18).

In any event, even if the supplemental probation report had alleged that appellant committed felony battery under subdivision (d) of section 243, such an allegation necessarily would have encompassed the lesser included offense of simple battery under subdivision (a) of that section. (See  1159; People v. Modiri (2006) 39 Cal.4th 481, 489, fn. 4.)

The evidence presented at the revocation hearing was sufficient to support the trial courts finding that appellant had violated the probation condition that he obey all laws. A reasonable trier of fact could conclude based on a preponderance of the evidence that appellant used willful and unlawful . . . force or violence upon Waldinger in violation of section 243, subdivision (a).

As an order revoking probation may properly be based on a single ground (see People v. Taylor (1968) 260 Cal.App.2d 393, 395;  1203.2, subd. (a)), we need not address appellants other challenges to the sufficiency evidence.

III. DISPOSITION

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] In 2009, we affirmed the judgment regarding the substantive offense in a nonpublished opinion. (See People v. Cavers (Jan. 29, 2009, A120525).)

[2] All further undesignated statutory references are to the Penal Code.

[3] Waldinger was holding the soda bottle with one hand, and was holding her kitten with her other arm. She had no recollection of what happened to her kitten during the altercation; she could only recall that after the incident her friend was standing nearby with the kitten.

[4] Appellant testified that it just galled [him] that someone would take a soda that didnt belong to them.