Filed 11/2/20 P. v. Smith CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. VICTORIA SMITH, Defendant and Appellant. D075845 (Super. Ct. No. PLW45481 )
ORDER DENYING PETITION FOR REHEARING & MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT: The petition for rehearing is denied. It is ordered that the opinion filed herein on October 7, 2020, be
modified as follows:
The first sentence in the o nly paragraph on page 8 is deleted. There is no change in the judgment.

BENKE, Acting P. J.
Copies to: All partiesFiled 10/7/20 P. v. Smith CA4/1 ( unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. VICTORIA SMITH, Defendant and Appellant. D075845

(Super. Ct. No. PLW45481 )

APPEAL from a n order of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney Genera l, Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent

. Victoria Smith appeals following the trial court’s order revoking her

p arole . She argues the court erred in admitting hearsay evidence at the
revocation hear ing without good cause and as a result she was deprived of her due process right to confront an adverse witness. We affirm.2 FACTUAL AND PROCEDURAL BACKGROUND 1 In 1992, a jury convicted Victoria Smith of second degree murder (Pen. Code, 2 § 187(a)), and the court sentenced her to life in prison with the possibility of parole. She was paroled on February 7, 2019.
I n March 2019, the Department of Corrections and Rehabilitation’s Division of Adult Parole Operations filed a p etition to revok e Smith’s p arole , alleg ing she (1) fail ed to follow her parole agent ’s instructions and (2) made
criminal threats.
A t an evidentiary hearing on the p etition , R .B., the victim of Smith’s criminal threats, testified she and Smith had maintained an intimat e relationship in prison and remained friendly after their release

. On March 20, 2019, Smith visited R. B .’s residence uninvited and refused to leave. R.B. reported the incident to the transition house where Smi t h was staying

. Following that incident, Sm ith’s parole agent bar red Smith from hav ing

c ontact with R.B.
T he transition house program director testified she became concerned
that Smith was distress ed over losing her relationship with R.B

. Accordingly, the director recommended that Smith undergo a psychological evaluation

. Smith refused to talk to the clinician.
R.B. testified that o n March 22, 2019, Smith returned to R. B .’s house and they talk ed on the porch for about 30 minutes. Smith said she needed to completely turn off her cellphone so “they can’t track her.” R. B

. photographed Smith through the screen door and sent the photos to Smith’s parole agent.

1 The facts are taken from the contested parole revocation hearing.

2 Undesignated statutory references are to the Penal Code.3

That day, Smith’s parole agent confiscated S mith’s cell phone and

re m i nd ed her not to contact R. B. Later that evening, the parole agent proposed moving Smith to Los Angeles. Smith became very hostile, said she
would refuse to go, and claimed R. B . had l ied about Smith contacting her. Smith subseque ntly video

- call ed R. B . using the cellphone of T.S., another
transition house client. R.B. could see that Smith was angry. Immediately
afterwards , R.B. received a text message from the same phone number . The
court admitted into evidence a screenshot of S mith’s text message , which
stated: “How dare you act like we were cool today, and when I leave but call [ sic ] [my parole agent] and forward a picture. I can’t believe you. You acted like we were cool and you did this. I’m locked down with nothing now. They come take everything and I’m out of the county like you wanted. Blood in
and blood out on me. We’re dying together. I’m coming back to kill us both.”
R. B . interpreted that text message as “threatening” and being “ mafia

- type stuff ” that meant, “ You bleed to get in, you die to get out. ” R.B. became concerned about her safety in light of Smith’s threat, and therefore left her
residence for the weeken d and changed her telephone number. On March 25, 2019, Smith bec ame angry and hostile about her transfer

to Los Angeles C ount y. Smith’s parole agent asked a counselor to try to calm
Smith. Smith told the counselor she “ wanted to go to Los Angeles to purchase a gun so she could come back and kill [R. B .] and then kill he rself.” The counselor was required to, and did report that Smith had threatened to
commit murder

- suicide. That evening, th e counselor be came concerned Smith might harm herself because Smith g a v e away her personal belongings. Smith’s parole agent also became concern ed that she was having suicidal or homicidal thoughts.4

The court allowed Smith’s parole agent to testif y over Smith’s objections that T.S. told him she never contacted R.B.; rather, Smith had
contacted R. B . using T.S.’s cellphone. 3 T he parole agent added that he believed T.S. because she had no animosity towards R.B.; additionally, T.S. does not use the kind of language contained in the challenged text message.
T he court found by a preponderance of the evidence that Smith had

c ommitt ed the alleged parole violations; therefore, it revoked her parole and
remanded her to the custody of the Department of Corrections and
Rehabilitation under section 3000.08 , subdivision (h)

. DISCUSSION Smith contends the court abused its discretion by adm itting into evidence T.S.’s statements to Smith’s parole agent that T.S. did not contact R.B. but instead loaned her cellphone to Smith, who used it to contact R.B. Smith further argues the parole agent’s reference to T.S.’s statement was hearsay and lack ed foundation, and the court made no finding T.S. was unavailable to testify, violating Smith’s constitutional confrontation right. Finally, Smith contends her parole agent’s testimony was prejudicial because

3 On direct examination of Smith’s parole agent, this colloquy ensued: “[Prosecutor:] Were you able to determine who se cell phone was used for those communications? “[Parole agent:] Yes. The cell phone used was from another client, [T.S.] I've spoken to [her] , and she had reiterated that when [ Smith ] had had her phone c onfiscated, unbeknownst to [T.S.], [Smith] simply said, " May I borrow your cell phone?" and [T.S.] obliged her. “[Defense counsel:] Objection. Hearsay. Foundation.

“ T he Court : Overruled. “[Prosecutor:] Did you ask [ T .S.] , when speaking with her, i f she, personally, ever made any phone call to [R.B.] ? “[Parole agent:] I did, and [ T .S.] stated she did not contact [ R .B.]”5

insufficient other evidence showed that Smith had sent R.B. the challenged text message. I. Applicable Law The parties agree that under People v. Arreola (1994) 7 Cal.4th 1144, parole revocation proceedings are subject to relaxed evidentiary rules, and that otherwise inadmissible hearsay having suf ficient indicia of reliability

may be admissible

. Although Arreola deals with probation revocation, “[p]arole and probation revocation hearings are equivalent in terms of the requirements of due process.” ( People v. Rodriguez (1990) 51 Cal.3d 437, 441,

c iting among others, Gagnon v. Scarpelli (1973) 411 U.S. 778, 782.) The
Arreola court stated: “[I] n determining the admissibili ty of the evidence on a

case
- by

- case basis, the showing of good cause that has been made must be considered together with other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character); the significanc e of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the testimony, or whether, instead, the testimony constitutes the sole evidence establi shing a parole violation

. ” ( Id. at p. 1160

. ) A trial court's decision to admit or exclude evidence in a parole revocation hearing will not be disturbed on appeal absent an abuse of
discretion. ( People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066; see generally Gagnon v. Scarpelli , supra , 411 U.S. at p. 786 .) Analysis We need not decide whether the trial court erred by admitting the challenged hearsay evidence without first making a finding of good cause6

regarding T.S.’s unavailability to testify under the criteria set forth in Evidence Code section 240. That is because any such error would be harmless beyond a reasonable doubt ( People v. Arreola, supra, 7 Cal.4th at p. 1161) as the trial court coul d reasonably conclude the challenged testimony had a substantial degree of trustworthiness. “As long as hearsay testimony bears a substantial degree of trust

- worthiness it may legitimately be used at a [parole] revocation proceeding.” ( People v. Brown (1 989) 215 Cal.App.3d 452, 45 4 .) Here, Smith’s parole agent’s testimony about Smith using T.S.’s cellphone was substantially trustworthy because it comported with R.B.’s testimony that she saw Smith in the video

- call, and immediately afterwards
received the text message from that same telephone number. The language used in the text message also confirmed R.B.’s testimony that when Smith had visited her, R.B. photographed Smith and sent the photo to a parole agent. In fact, in this context, the text messag e only makes sense if it came from Smith, as it refers to Smith’s confrontations with her parole agent over her transfer to Los Angeles County. The text message also tracked testimony that Smith had told her counselor about wanting to buy a gun to kill he rself and R.B. Finally, Smith’s parole violations were established by evidence independent of the challenged evidence. Specifically, Smith violated her parole by not following her probation agent’s instructions prohibiting her from contacting R.B. Smith still visited R.B., and mentioned turning off her phone to avoid being tracked. Smith does not refute the court’s finding that she committed that parole violation. She instead speculates it would not have sufficed for the court to revoke her probation: “ If this was the only violation found to be true, it is highly unlikely that the court would have revoked Smith’s parole. [The7

parole agent] testified that prior to the alleged threat in the text message, he
felt that Smit h’s violation of the no [

- ] contact order was a non

- violent incident
that could be handled on a community basis. When he made the decision to

move Smith to Los Angeles C ounty, he emphasized to her that she would not be charged with a parole violation. ” How ever, we are required to draw inferences in favor of the order. “We review a [parole] revocation decision pursuant to the substantial evidence standard of review.” ( People v. Urke (2011) 197 Cal.App.4th 766, 773.) Under that standard , “our review is
lim ited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In that regard, we give great
deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” ( People v. Kurey (2001) 88 Cal.App.4th 840, 848

- 849, fns. omitted.) As to the second parole violation f inding, Smith also overlooks
evidence

— apart from T.S.’s statements

— that Smith had threatened to commit a crime. As noted, R.B. testified that immediately after seeing Smith in the video call, she received the threatening text message from the same phone n umber. The trial court could reasonably infer that Smith had
threatened to commit murder

- suicide in the text message. Further, the counselor testified that Smith said she wanted to buy a gun to kill R.B. and herself. Smith argues this particular threat was communicated to the counselor but not made in R.B.’s presence; therefore, it does not qualify as a

criminal threat under section 422. 4

4 Section 422, subdivision (a) applies to: " Any person who willfully threatens to commit a crime which will result in death or great bodily injury8

However, section 422 is not mentioned in the parole revocation petition, and we decline to import that specific statutory reference into it. In People v.
Monette (1994) 25 Cal.App.4th 1572 , t he court in the probation context explained , “The role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he can be safely allowed to remain in society.” ( Ibid. ) This analysis is equally applicable in the parole context, and the court here did not err in determining Smith threatened to commit murder

- suicide and therefore

canno t safely be allowed to remain in society. We conclude the court did not err by finding Smith committed the alleged parole violations.

to another person, with the specific intent that the statement

. . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safet y. " (See People v. Chandler (2014) 60 Cal.4th 508, 511 .)9 DISPOSITION
The order is affirmed.

O'ROURKE, J.
WE CONCUR:

BENKE, Acting P. J.

IRION, J.