P. v. Lowder
Filed 6/28/12 P. v. Lowder CA1/4
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL
DAVID LOWDER,
Defendant and Appellant.
A132733
(Napa
County
Super. Ct. No. 151663/153437)
Michael
David Lowder appeals from a judgment imposed following revocation of probation
in two cases. He contends that the
evidence is insufficient to support the trial court’s finding that he violated
probation.
FACTUAL BACKGROUND
We
recently affirmed the judgments in two cases which resulted in defendant being
placed on probation. (
2012, A131831) [nonpub. opn.] (Lowder
II).) In Lowder I, defendant was convicted of receiving stolen property
(Pen. Code,
title="">[1]
§ 496, subd. (a)), and was placed on probation for three years. (Lowder
I, supra, A131829 at p. 2.) In
stalking (§ 646.9, subd. (b)), and placed on probation for three
years. (Lowder II, supra, A131831
at pp. 1-2.) On March 14, 2011, the
district attorney filed a petition to revoke probation in both cases, alleging
that defendant violated probation by making a false report of a
probation violation by making a false report that Jill Sandbek, his former
girlfriend, came to his house with another man, tied him up and cut the pinkie
finger of his left hand. (
We affirmed the court’s judgment finding defendant in violation of
probation and reinstating him on probation in both cases. (Lowder
I, supra, A131829 at p. 5;
On
May 17, 2011, the district attorney filed a petition to revoke defendant’s
probation in both cases alleging that he violated the terms of probation by
committing stalking (§ 646.9, subd. (c)(2)), vandalism (§ 594, subd.
(b)(1)), violation of a protective order (§ 273.6, subd. (a)), and
contempt of court (§ 166, subd. (c)(1)).
A
contested revocation hearing was held on June
3, 2011. The following
evidence was presented: Jill Sandbek
testified that she was at home on Division Street
in Napa on the morning of May 12, 2011 when she received a
telephone call from the
jail informing her that defendant had been released. Robert Kiehl, her boyfriend, was also
there. Sandbek had a prior romantic
relationship with defendant and, due to his threats against her and her family,
and his stalking of her, she had a restraining order against him. At around 1:30
p.m. on May 12, 2011,
she heard rocks being thrown at her house.
She also heard someone calling her name.
She thought the voice sounded like defendant’s.
Sandbek
had installed a camera surveillance system
because she feared defendant. The camera
filmed images occurring outside of the house that could be watched in real time
on a screen inside of the house. When
Sandbek heard the rocks, she activated the camera and started to watch the
screen. After she heard the sound of a
can “crunching” or another rock, she looked at the screen and saw defendant
walking past her car which was parked in front of the house. She went to the window and saw defendant
walking away toward Franklin Street. Defendant was wearing long pants, white
tennis shoes, and a cap. Sandbek
testified that she recognized the cap and that defendant always wore a cap. Sandbek was afraid and testified that she
feared he might injure her. Sandbek
testified that a still photo taken from her surveillance camera resembled
defendant’s gait but was not a good image and did not look the same as what she
saw on the screen. She was positive that
the image she saw on the screen in real time was defendant. She later discovered that the rear window to
her BMW had a big hole in it. She spent
$450 for the window and parts; Kiehl did the repairs.
Defendant
had damaged Sandbek’s car in the past.
On one occasion in August 2010, defendant left a dead raccoon on top of
her rental car; the raccoon had her pantyhose or one of her undergarments tied
around its neck. On still another
occasion in August 2010, defendant and Sandbek argued and defendant grabbed her
by the hair, threw her on the floor, and hit her. Sandbek suffered bruises to her arm, leg, and
back and some of her hair was ripped out of her head. A few days prior to the revocation hearing,
Sandbek received three letters from county jail inmates. She did not know any inmates at the jail
other than defendant. She had not given
her name and address to any inmate at the county jail.
The
parties stipulated that Sandbek had two restraining orders against defendant
and that both were in effect.
Kiehl
testified that he was at home on May 12, 2011 when he heard someone yelling
outside and heard a couple of rocks hit the house. He left the house to investigate but did not
see anyone. When he returned to the
house later, he saw that the rear window of Sandbek’s car was broken. He discovered a rock inside the car during
the process of repairing the window.
Shawna
Bagdon, a friend of both defendant and Sandbek, testified that defendant had
damaged Sandbek’s car previously when it had been parked in her driveway. She testified that defendant visited her at
her house on May 12, 2011
at between 1:00 p.m. or 1:30 p.m.
Defendant stayed and talked with Bagdon until about 2:45 p.m. Bagdon
testified that she was concerned about the possibility that defendant would
retaliate against her. She would not
want him to get mad at her for something she said during the hearing.
Gerard
Anger, a friend of Sandbek’s, testified that in September 2010, Sandbek stayed
at his mobile home park residence periodically.
One evening during that month, he saw defendant use a slingshot to shoot
rocks at his home. The next day,
defendant called him and asked him to pick up a package for Sandbek. Anger refused but defendant came by later
that day with a brown gunnysack in his hands.
He stabbed the gunnysack with his knife, ripped it open and pulled out a
raccoon. He placed the dead raccoon on
the roof of Sandbek’s car. When Sandbek
stayed with Anger during that month, defendant called her repeatedly. Anger heard defendant threaten Sandbek about
three times.
Officer
Thomas Keener responded to the call concerning vandalism to Sandbek’s car. He observed a two by four inch hole in the
rear window of her car. He found Sandbek
to be distraught; she was crying and appeared frightened. Sandbek told him that she saw defendant in
front of her house near her car on the surveillance video at approximately 1:30 p.m.
Crystal
Villatoro, defendant’s probation officer, testified that she met with defendant
from 10:45 a.m. to 11:30 a.m. on May 12, 2011.
Officer
Brad Baker investigated the incident and contacted defendant on May 13, 2011. Defendant denied any involvement in the
vandalism at Sandbek’s residence. Baker
also testified regarding the facts that led to the filing of the probation
revocation petitions in Lowder I and
a false report of a criminal offense.
Lieutenant
Steven Blower testified that inmates Daniel Coles, Damon Hughey, and Gary
Larson were housed in module 105, at
various times from March to May of 2011.
Hughey and Larson told an investigator from the district attorney’s
office that they got Sandbek’s name from a pen pal note on the bulletin board
in module 105.
In
defense, Steven Flinn, an attorney, testified that he represented defendant
several years ago, and that he and his wife had taken on the task of mentoring
him in basic life skills. He said that
he had concerns about Sandbek’s influence on defendant and their drug usage. He would not believe Sandbek’s or defendant’s
testimony unless it was corroborated.
Flinn saw defendant at between 2:45 p.m.
and 3:00 p.m. on May 12, 2011 when defendant came to his office.
David
Yarlott testified that he saw defendant at about 10:00
a.m. and again between 5:00
and 6:00 p.m. on May 12, 2011.
Yarlott testified that defendant was not the person in the photograph
from the surveillance video. The
surveillance video tape was played for the court.
The
court found defendant in violation of probation based on the totality of the
circumstances, the similarity of the rock throwing to defendant’s prior
instances of misconduct, the vandalism on Sandbek’s car window, her testimony
that she recognized him at the scene, and defendant’s past conduct toward
Sandbek’s car. Based on the evidence the
court found that the People had met the burden of proof for a violation of
probation and had shown by a preponderance of the evidence that defendant
violated his probation.
DISCUSSION
Defendant
contends that the evidence was insufficient to support the probation violation
finding. He argues that Sandbek’s
testimony did not establish that defendant threw the rock that broke her car’s
window.
A
court may revoke probation “if the interests
of justice so require and the court, in its judgment, has reason to believe
from the report of the probation officer or otherwise that the person has
violated any of the conditions of his or her probation
. . . .” (§ 1203.2,
subd. (a).) The standard of proof
required for revocation of probation is a preponderance of the evidence to
support the violation. (
437, 447.) The evidence, however, “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, 981-982.) The determination of whether to revoke probation is
addressed to the sound discretion of the trial court. (Ibid.,
People v. Kelly (2007) 154
Cal.App.4th 961, 965.) On appeal, we
will not disturb the trial court’s findings absent an abuse of discretion. (Ibid.)
Contrary
to defendant’s argument, Sandbek’s testimony established that she identified
defendant not only from the surveillance video in “real time” but that she also
caught a glimpse of defendant outside her bedroom window. Defendant’s act in vandalizing her car was
consistent with his prior bad acts in damaging her car. While defendant argues that he had an alibi
because he was visiting with Bagdon at the time the incident allegedly
occurred, Bagdon’s testimony was not exact, and as the trial court found, “the
incident certainly could have occurred somewhere around 1:30 [p.m.], and still
allow Mr. Lowder [who could travel by bike between Sandbek’s home and Bagdon’s
home in 10 minutes] to see Ms. Bagd[o]n.”
preponderance of the evidence, that defendant committed the vandalism of
Sandbek’s car. The trial court properly
found defendant to be in violation of probation.
DISPOSITION
The
judgment is affirmed.
>
_________________________
RIVERA,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
REARDON, J.
People v. Lowder A132733
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code.
name="_ftn2" title="">[2]
The trial court based its finding on the testimony of Bagdon, Flinn, and
Baker: “We heard testimony that he was
across town at Pueblo at around 1:00 to 1:30 [p.m.], according to the testimony
of Ms. Shawna Bagd[o]n. She testified
she was pretty positive it was somewhere between 1:00 and 1:30 [p.m.] We heard testimony that he was there from
1:30 until about 2:45 [p.m.] when she left to pick up her children from school. And we heard from Mr. Flinn that Mr. Lowder
was there somewhere between 2:45 and
3:00 [p.m.] And from Pueblo
to downtown, depending upon if you’re listening to Officer Baker, or however
long you think it takes to ride a bike, with that testimony, he would have been
there in 10 minutes, or thereabouts. And
if he could be from Pueblo to Second Street in 10 minutes, it makes sense that
he could be from Division Street [Sandbek’s residence] to Pueblo in about 10
minutes as well, and that the incident certainly could have occurred somewhere
around 1:30 [p.m.], and still allow Mr. Lowder to see Ms. Bagd[o]n.”
