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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 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.

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 only paragraph on page 8 is deleted.

There is no change in the judgment. 

BENKE, Acting P. J.

Copies to: All parties
Filed 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115. 

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)

APPEAL from an 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 General, Melissa Mandel and Stephanie H. Chow, Deputy 

Attorneys General, for Plaintiff and Respondent.

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

parole. She argues the court erred in admitting hearsay evidence at the 

revocation hearing 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 BACKGROUND1

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.

In March 2019, the Department of Corrections and Rehabilitation’s 

Division of Adult Parole Operations filed a petition to revoke Smith’s parole,

alleging she (1) failed to follow her parole agent’s instructions and (2) made 

criminal threats. 

At an evidentiary hearing on the petition, R.B., the victim of Smith’s 

criminal threats, testified she and Smith had maintained an intimate 

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 Smith was staying.

Following that incident, Smith’s parole agent barred Smith from having

contact with R.B. 

The transition house program director testified she became concerned 

that Smith was distressed 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 on March 22, 2019, Smith returned to R.B.’s house

and they talked 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 Smith’s cellphone and

reminded 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 lied about Smith contacting her. 

Smith subsequently video-called 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 Smith’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 weekend and changed her telephone number.

On March 25, 2019, Smith became angry and hostile about her transfer 

to Los Angeles County. 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 herself.”

The counselor was required to, and did report that Smith had threatened to 

commit murder-suicide. That evening, the counselor became concerned 

Smith might harm herself because Smith gave away her personal belongings. 

Smith’s parole agent also became concerned that she was having suicidal or 

homicidal thoughts.
4

The court allowed Smith’s parole agent to testify 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 The 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.

The court found by a preponderance of the evidence that Smith had 

committed 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 admitting 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 lacked 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 whose cellphone was

used for those communications?

“[Parole agent:] Yes. The cellphone used was from another 

client, [T.S.] I've spoken to [her], and she had reiterated that when 

[Smith] had had her phone confiscated, unbeknownst to [T.S.], [Smith]

simply said, "May I borrow your cellphone?" and [T.S.] obliged her.

“[Defense counsel:] Objection. Hearsay. Foundation. 

“The Court: Overruled.

“[Prosecutor:] Did you ask [T.S.], when speaking with her, if 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 sufficient 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, 

citing among others, Gagnon v. Scarpelli (1973) 411 U.S. 778, 782.) The

Arreola court stated: “[I]n determining the admissibility 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 significance 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 establishing 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 cause 
6

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 could 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 (1989) 215 Cal.App.3d 

452, 454.) 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 message 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 herself 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. [The 
7

parole agent] testified that prior to the alleged threat in the text message, he 

felt that Smith’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 County, he emphasized to her that she would not 

be charged with a parole violation.” However, 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 

limited 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 finding, 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 number. 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 injury 
8

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, the 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 

cannot 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 safety." (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.