P. v. Denning
Filed 5/2/13 P. v. Denning CA4/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDERICK
DENNING,
Defendant and Appellant.
D061658
(Super. Ct. No.
SCN279200)
APPEAL
from a judgment of the Superior Court of
County, Daniel B. Goldstein, Judge. Affirmed.
On
February 28,
2011, Frederick Denning was convicted of
driving under the influence causing
§ 23153, subd. (a)), driving with a measurable blood alcohol causing
injury (Veh. Code, § 23153, subd. (b)) and
vehicle (Veh. Code, § 23223).
It was also found that Denning personally inflicted great bodily injury
(Pen. Code, § 12022.7, subd. (a)) and had driven with a blood alcohol of
0.15 or more (Veh. Code, § 23578).
On
May 2, 2011, Denning was sentenced to a six-year term of imprisonment, the
execution of which was stayed for five years subject to a grant of
probation. One of the terms of probation
was that Denning was not permitted to drive a car unless licensed and insured
as required by state law.
On
June 20, 2011, the court granted Denning's request for a restricted license to
drive to and from work and court-ordered programs and school.
On
December 13,
2011, probation officers arrested Denning
for driving with a suspended license and for driving in violation of the
conditions of his probation.
Following
an evidentiary hearing the court
revoked probation and executed the previously suspended prison sentence.
Denning
appeals contending the trial court erred in admitting a Department of Motor
Vehicles (DMV) printout, which showed his license had been suspended in May
2011; that there is insufficient evidence that he willfully violated the
conditions of probation; that the condition of probation which restricted his
driving ability was vague and that the court abused its discretion in declining
to reinstate him to probation in lieu of the prison sentence. We will find the challenge to the probation
condition has been forfeited for failure to raise it in the trial court. We will reject the other contentions and
affirm the trial court's decision.
STATEMENT OF FACTS
Since
this appeal challenges the revocation of probation we will not discuss the
facts of the underlying offenses.
Suffice that Denning was found guilty of driving with a blood alcohol of
0.22 and that he injured a person in the accident.
The
factual background of the court orders and Denning's conduct are somewhat
confusing, however we will list some of them chronologically:
1. On February 28, 2011,
Denning was convicted of the underlying crimes.
2. On March 29, 2011,
DMV issued a driver's license to Denning, based upon a previous application.
3. On May 2, 2011,
Denning was granted probation subject to certain conditions, including that he
not violate any laws, that he surrender his license, and that he not drive a
car unless licensed and insured as required by state law.
4. On June 20, 2011,
Denning requested a restricted license.
Defense counsel told the court that Denning "actually did a bench
trial with a visiting judge. And his
license was reinstated by the DMV approximately a year ago, actually back in
April. But when he was sentenced the
judge put a mandatory one year license suspension, which is accurate, but
ultimately he already served out his suspension, so he is asking for a restricted
license."
The
court granted his request for a restricted license. However, the DMV printout, which was admitted
in evidence at the revocation hearing, showed Denning's license was suspended
on May 2, 2011, and that the notice had been sent to him at his home address on May 12, 2011.
Probation
officer Robert Frejek testified at the evidentiary hearing. He said he had met with Denning a number of
times at the address to which the DMV notice had been sent. Frejek told Denning a number of times he
could not drive a car as it would be a violation of the terms of his probation.
In
August 2011, Frejek met with Denning who said the court had granted him a
restricted license. Frejek reminded
Denning he still had to get a valid license from DMV. Denning said he had tried but that DMV told
him he was not eligible until May 2012.
Denning denied driving and said he used public transportation and the
assistance of friends instead.
As
of September 2011, when Frejek met with Denning, Denning advised he still did
not have a license and knew he was not permitted to drive.
In
December 2011, the probation department learned that Denning had been seen
driving. They scheduled a compliance
interview with Denning for December 13, 2011.
Following
the meeting Frejek observed Denning get into the driver's seat of a car and
start the engine. Frejek then arrested
Denning for violation of probation.
During the discussion that followed, Denning admitted he had been
driving, but contended he had no choice.
He also said he had driven to his last court appearance.
DISCUSSION
I
During
the evidentiary hearing the prosecution offered a certified copy of the DMV
printout of the notice to Denning that his license had been suspended effective
May 2,
2011.
Denning objected principally on hearsay grounds. The trial court found the document was an
official record; that it was self-authenticating and that in any event it was
admissible in a probation revocation proceeding. Denning contends the court abused its
discretion in admitting the DMV record.
A. Standard of Review
The
trial court's decision to admit or exclude evidence at a probation revocation
hearing "will not be disturbed on appeal absent an abuse of
discretion." (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198;
Cal.App.4th 396, 400.)
B. Legal Principles
Probation
revocation hearings are not part of the criminal
prosecution, thus a defendant does not have the full range of rights that
he or she would have in a criminal trial.
(People v. Shepherd, supra,
151 Cal.App.4th at p. 1198; Morrissey
v. Brewer (1972) 408 U.S. 471, 480.)
The Sixth Amendment right to confrontation does not apply to probation
revocation hearings. (
Cal.App.4th 1409, 1411.) The
probationer's right to cross-examination and confrontation is thus based on the
due process clause of the Fourteenth Amendment.
(Ibid.)
Where
appropriate, materials such as documentary
evidence, not based on live testimony, may be admissible in revocation
proceedings. (People v. Maki (1985) 39 Cal.3d 707, 715; People v. Areola (1994) 7 Cal.4th 1144, 1156-1157.)
In
People v. O'Connell (2003) 107
Cal.App.4th 1062, 1064, the court approved of the admission of an
"Adult Program Termination Report" indicating the probationer had
failed to complete required classes. The
court determined the report had the requisite indicia of reliability and
trustworthiness to justify its use at a revocation hearing. (Id.
at pp. 1066-1067.) Courts have also
approved of the admission of probation reports and documents in revocation
hearings. (People v. Abrams, supra,
158 Cal.App.4th at p. 401; People v.
1034.)
Evidence
Code section 1280, the so-called "official records" exception to the
hearsay rule, provides:
"Evidence of a writing made as a
record of an act, condition, or event is not made inadmissible by the hearsay
rule when offered in any civil or criminal proceeding to prove the act,
condition, or event if all of the following applies: [¶]
The writing was made by and within the scope of duty of a public employee. [¶]
The writing was made at or near the time of the act, condition, or event.
and time of preparation were such as to indicate its trustworthiness."
This
section permits the introduction of official records without the necessity of
requiring a witness to testify as to identity or mode of preparation if the
record supports a finding the record is trustworthy. (People
v. Martinez (2000) 22 Cal.4th 106, 129.)
C. Analysis
The
document at issue in this case is a certified copy of a DMV notice to Denning
about the suspension of his driver's license.
It reflects the actions of the agency and shows it was mailed to
Denning's address. Denning has always
acknowledged the address was correct. In
addition, Denning admitted to the probation officer that he knew his license
had been suspended and that he had learned from DMV that he would not be
eligible for a license until May 2012, exactly a year from the date of
suspension as set forth in the notice.
We
are satisfied that the DMV document was of sufficient trustworthiness to permit
the court to admit it into evidence at the revocation hearing.
II
Denning
contends there is not sufficient evidence in this record to support a finding
that he willfully violated the terms of his probation. He bases his contention principally on the
confusion caused when defense counsel in June 2011 was able to convince the
court to grant a "restricted license." That action was based on counsel's
representation that Denning had completed his suspension. The representation was not correct, since prior
to that time DMV had suspended Denning's license and had provided him notice of
the suspension. Denning persists,
however, in the argument that the confusion created by the court's June 20,
2011 order demonstrates there is not sufficient evidence to support the
finding. As we have noted previously,
Denning not only received notice of his license suspension as well as multiple
warnings from his probation officer, he also admitted to the probation officer
that he knew the license was suspended and that he learned from DMV he would
not be eligible for reinstatement until May 2012.
We
believe a review of the entire record demonstrates there is sufficient evidence
to support a finding of willful violation of the conditions of probation.
A. Standard of Review
In
order to prove a violation of probation the prosecution must establish such
violation by a preponderance of the
evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441-443.) On appeal, we review the trial court's
decision under the familiar substantial evidence standard of review. (People
v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) Under that standard, we evaluate the entire
record, drawing all reasonable inferences in favor of the trial court's findings. We do not make credibility decisions, nor do
we reweigh the evidence. Our task is
simply to determine whether there is sufficient, substantial evidence from
which the trial court could have found the prosecution satisfied its burden of
proof. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.)
B. Analysis
While
it is true that the action of the defense in persuading the court in June 2011,
to authorize a "restricted license" added confusion to the record, it
does not undermine the sufficiency of the evidence to support a willful
violation of the probation condition prohibiting driving unless Denning was
licensed and insured as required by state law.
The record clearly supports an inference that Denning was fully aware,
after June 2011, that he was not properly licensed by DMV and that he was not
permitted to drive without a valid license.
The court admitted the DMV notice issued in May 2011 that Denning's
license was suspended May 2, 2011. The
court could also reasonably find Denning received that notice.
Further,
the probation officer testified to repeated warnings he gave to Denning after
June 2011, that he was not permitted to drive.
Denning acknowledged that limitation and explained to the probation
officer that he had unsuccessfully attempted to get a new license. It was Denning who told the officer that he
had been advised by DMV that he would not even be eligible for a new license
until May 2012.
Thus,
when Denning drove to the probation office in December 2011, he was aware he
was not authorized to do so. He also
admitted earlier driving and that he actually had not taken a bus to one of his
court appearances as he had previously indicated. In short, the DMV record and the probation
officer's testimony constitute sufficient substantial evidence to support the
trial court's decision.
C. Denning's Challenge to the
Probation Condition Has Been Forfeited
As
an alternative argument that the evidence is insufficient, Denning, for the
first time on appeal raises a claim that the condition was vague as
applied. Relying on In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), Denning contends the condition prohibiting driving was
unconstitutionally vague, largely because of the modified order in June
2011. We find the issue has been
forfeited for failure to raise the issue in the trial court.
The
vagueness challenge is based on the notion the defendant must be given fair
warning of the prohibited conduct. (
890.) The vagueness doctrine only
requires a reasonable certainty as to what is prohibited. (People
v. Morgan (2007) 42 Cal.4th 593, 605.)
The
probation condition at issue here is crystal clear, do not drive unless
licensed and insured as required by state law.
There is nothing vague about the condition. Denning seeks to challenge the condition as
applied, in light of the court's modification order in June 2011. An appellant cannot challenge a condition of
probation for the first time on appeal.
(People v. Welch (1993) 5
Cal.4th 228, 237; People v. Gardineer
(2000) 79 Cal.App.4th 148, 151.)
By
failing to object to the condition in the trial court Denning deprived that
court of the opportunity to review the challenge and to make modifications if
necessary. The lack of objection also
deprived us of a record of the trial court's analysis had the issue been
raised.
The
decision in Sheena K.,
888, dealt with a condition that was vague on its face. It did not require examination of the factual
circumstances of the case and how the condition might have been unclear to the
defendant. The case does not challenge
the holding in People v. Welch, supra,
5 Cal.4th 228, 237. Forfeiture in
this case is particularly appropriate because the basis of the purported
challenge on appeal is that the condition became vague as applied after the
defense, and based on inaccurate information obtained a partial modification of
an earlier license suspension. As we
pointed out above, however, Denning was well aware he did not have a valid license
when he was driving in this case. He was
also keenly aware he would not be eligible for a valid license until May 2012,
and that he could not drive without that license. Thus, we reject Denning's challenge on the
ground of vagueness.
III
DISCRETION
Finally,
Denning contends the trial court abused its discretion in executing the
suspended prison sentence instead of reinstating his grant of probation. The contention is without merit.
A. Standard of Review
Trial
courts have broad sentencing discretion, including whether to revoke or grant
probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 445.) Such decisions are granted great deference
and will only be set aside when the record discloses a manifest abuse of the
court's discretion. (
Cal.App.3d 120, 123; People v. Urke
(2011) 197 Cal.App.4th 766, 773.)
B. Analysis
Denning
essentially argues his otherwise good performance on probation renders the
trial court's decision to impose the previously stayed sentence
unreasonable. This is a classic case of
the exercise of discretion. The trial
court was fully aware of the facts and considered various alternatives, before
deciding that return to probation was not appropriate. Is it possible that another judge with the
same information might have reached a different result? The answer is obvious, certainly reasonable
minds could differ in this case as to the proper course of action. However, the fact there were other
alternatives available does not make a trial judge's decision to reject those
alternatives an abuse of discretion.
Denning's
crime was serious and caused life changing harm to the victim. Although Denning appeared to follow most of
the conditions of probation, willful driving without a license poses the very
risk the probation condition was designed to prevent, which is a repeat of his
earlier offense. The trial court could
consider Denning's actions to be a willful disregard of the court's orders and
a sign that he did not fully appreciate the gravity of the underlying offense
and its risk of harm to others. The
trial court did not abuse its discretion in this case.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES,
J.
HALLER,
J.
