Filed 3 / 25 / 21 P. v. Figueroa CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

ELENA MA RIE FIGUEROA,

Defendant and Appellant. 2d Crim. No. B306288 (Super. Ct. No s . 18CR05127, 19CR07458) (Santa Barbara County)

Elena Marie Figueroa appeals from the judgment after the trial court revoked probation and sentenced her to four years in co unty jail. She contends: (1) there was insufficient
evidence that she violated the terms of probation, (2) she did not have adequate notice of the grounds for revocation, (3) the denial of her motion to continue sentencing violated her right to counsel, and (4) she was denied the right to be present at sentencing. We agree with Figueroa’s first contention, and therefore do not consider her remaining contentions. We reverse.2 FACTUAL AND PROCEDURAL HISTORY
I n 2018, Figueroa pled guilty to possession of h eroin in county jail ( Pen. Code, 1 § 4573.6, subd. (a)). The trial court suspended imposition of sentence and ordered her to serve three years of formal probati on, including 120 days in jail. The following year, Figueroa pled guilty to second degree burgl ary (§ § 459, 460, subd. (b)), and admitted that she had violated the terms of probation in her 2018 case. The court suspended imposition of sentence and ordered her to serve three years of formal probation for her burglary conviction. For her probation

v iolation, it ordered her to serve 180 days in jail . It then reinstated probation in that case

.

In 2020, prosecutors charged Figueroa with attempted residential burglary (§§ 664/459, 460, subd. (a)). They also alleged that she had violated the terms of probation imposed in her two previous cases by committing that crime. Figueroa pled not guilty to the attempted burglary charge and denied the probation violation allegation.

The trial court held a combined preliminary hearing on the attempted burglary charge and hearing on the probation violation allegation. Officer Antonio Montojo was the sole witness. Prosecutors elicited much of his testimony to support the attempted burglary charge through the admission of hearsay. (See § 872, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070

- 1071.) Figueroa objected to his testimony to the extent it was proffered on her alleged probation violations. The trial court agreed, and excluded the testimony for purposes of that hearing. ( People v. Quart erman (2012) 202 Cal.App.4th 1280, 1296 .)

1 S tatutory references are to the Penal Code.3 For purposes of the probation violation hearing, Officer Montojo testified that he was dispatched to an RV park

. He obtained video which showed Figueroa standing near the rear of an RV holding a sweater in one h and and “what appeared to be a pocketknife and/or pick in the other.” Officer Montojo inspected the roof of the reporting party’s RV and saw that “some plastic pieces . . . had been tampered with” on an air vent. There were also “pry markings” on the key hole in the RV’s door.

Based on this testimony, the trial court found Figueroa in violation of the terms of he r probation.
DISCUSSION Figueroa contends the judgment should be reversed
because there was insufficient evidence that she violated the

terms of her probation by attempting to commit residential burglary. We agree.

A trial court may revoke probation if it “ has reason to believe . . . that the [probationer] has violated any of the
conditions of their supervision, has become abandoned to imprope r associates or a vicious life, or has subsequently committed other offenses.” (§ 1203.2, subd. (a).) “‘The facts supporting revocation . . . may be proven by a preponderance of the evidence.’ [Citation.]” ( People v. Galvan (2007) 155 Cal.App.4th 978, 982 ( Galvan ) , alterations omitted.)

We review a n order revok ing probation for
substantial evidence

. ( 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 entir e record, there
is

. . . evidence of solid value, contradicted or uncontradicted, [that] will support the trial court ’ s decision. ” ( People v. Kurey (2001) 88 Cal.App.4th 840, 848 .) “[W] e give great deference to4

the trial court [,] and resolve all inferenc es and intendments in favor of the judgment. ” ( Id. at pp. 848

- 849.) “[A] ll conflicting
evidence will be resolved in favor of the decision ” to revoke probation. ( Id. at p. 849.) Only “‘“in a very extreme case ”’” will

we interfere with that decision. ( U rke , at p. 773.) Here, Officer Montojo testified that he observed that an RV’s air vent had been “tampered with” and that its keyhole had some “pry markings” around it. But prosecutors presented
no evidence as to when the RV had sustained this damage; it
could have been months or years earlier. P rosecutors also presented no evidence that the damage was of a type that could have been inflicted by a pocketknife or pick. And prosecutors presented no evidence as to when

— or even where

— the video footage showi ng Figueroa holding a similar

- looking instrument
had been taken

. In short, the admissible evidence showed only that an RV had been damaged at some unknown date and that Figueroa was filmed on an unknown date at an unknown place holding a sharp object whil e standing behind an RV. Even under the lower preponderance

- of

- the

- evidence standard, this is an
insufficient basis on which to revoke probation. (See, e.g.,
Galvan

, supra , 155 Cal.App.4th at pp. 982

- 98 3 [reversing probation revocation decision due to la ck of evidence as to when defendant reentered the country]; see also People v. Balkin (2006) 145 Cal.App.4th 487, 492

- 493 [defendant erroneous ly convicted of failing to register as sex offender within five days because no evidence showed when he moved into the city].)

Our dissenting colleague takes us to task because “everyone .

. . knows” that Figueroa is guilty. But courts, like juries, are supposed to limit themselves to the evidence. Here, our colleague relies too heavily on “facts” not admitted into5

evidence on the probation violation, or on outright speculation. As noted above, the court conducted a combined preliminary hearing and probation violation hearing. Some evidence was admitted for the preliminary hearing only; so was excluded from
consid eration in the probation violation hearing. For purposes of the probation violation, there was no evidence that Figueroa was observed or videotaped on the roof of the victim’s RV ( or any other RV

) . There was no evidence that Figueroa made any
statements, much less admissions, to Officer Montojo at any time.
There was no evidence that the pry marks were “fresh” or that the victim’s key would not work “for the first time, after the tampering of the front lock.” There was no evidence that Figueroa was or h ad ever been present at the victim’s RV, other than an undated photo of her standing next to an unidentified RV on an unknown date. Our opinion does not exalt “form over substance”; it instead exalts facts over speculation, because facts

matter. DISPOSIT ION

The judgment is reversed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

I concur:

PERREN, J.1

YEGAN, J., Dissenting. I respectfully dissent. At this violation of probation hearing in two separate felony cases , the trial court factually
found that a ppellant committed

, not the charged attempted residential burglary, but a trespass by walking on the roof of the
victim’s motor home and/or vandalism to the roof and the front
door lock to the motor home. The fair inference is that someone was trying to f

orce entry as there were pry marks on both the roof
vent and the front door lock. The victim called 911 and the police responded. The objection to the substance of the 911 call was
overruled. The substance of the 911 call is some evidence of a contempor aneous attempt to commit a residential burglary. How is appellant connected to this event? The victim videotaped either appellant on the roof, or right next to his

m otor home, holding a pry tool. The majority does not explain why the victim’s videotape, shown to the officer at the scene, and attested to by the officer, is not some evidence showing that appellant was, at the very least, trespassing o n the roof or near
the motor home. This video is not hearsay. Reversal of a violation of probation finding “‘“is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’”

. . . . the [finding].’” ( People v. Manibusan (2013) 58 Cal.4 th 40, 87.)
T he victim told the officer that he saw appellant on th e roof. This is hearsay. But, appellant herself told the officer at
the scene that she was the owner of the motor home! This is an
admission and it connects her to the motor home and the 911 call. This was properly received into evidence pursuant to t he well

recognized exception to the hearsay rule. Coupled with the
officer’s observations of a forcible attempt to enter the2

motor home, the victim’s statement to the officer seems particularly trustworthy. Why would he report the incident if he
were not the owner who witnessed appellant attempting to gain entry? Trustworthy hearsay is admissible to show a violation of probation. (See People v

. Buell (2017) 16 Cal .App. 5 th 682, 689; People v. Maki (l985) 39 Cal

. 3d 707, 715

- 717

. ) And, for the first time, aft er the tampering of the front lock

, the victim’s key would not open the lock. The officer saw this. This is not hearsay. This
i s some evidence of a r ecent attempt of forcible entry. As indicated in the majority opinion, the Court of Appeal should give great deference to the trial court’s decision to revoke probation. And it recites the rule that we draw inferences in
favor of the revocation order. ( Maj. opn. a t p. 4

. ) The majority opinion cites these rules rule but then does not apply them. In fact, it does the opposite. It draws the inference that the officer cannot tell a fresh pry mark from an ancient one. It draws the inference that these pry marks were not made by the tool that appellant was holding. It draws the inference that the date of th e video is unknown. These are not reasonable inferences in favor of
the revocation order. The majority should “connect the dots,” i.e.,
use rational inferences to associate one idea with another to find the “big picture.” (See People v. Bohana (2000) 84 Cal.App.4 th 360, 368.) Everyone, even the majority, knows that appellant was, at the very least, on the roof or trespassing near the motor home because she told the arresting officer, perhaps mistakenly, that
this motor home belonged to her! She was so ad amant that she previously told the victim to call the police. These statements are
also admissions. There was and is “reason to believe” that appellant was in violation of the probation previously granted.3 This meaningless reversal is an exaltation of form over substance. It will result in no good as the People may now retry the violation of probation matter. It is a certainty that they can prove the violation of probation matter simply by calling the
victim as a witness. He was not originally calle d, probably as a
result of the covid shutdown. The instant combined preliminary hearing/violation of probation was a “test case” for remote video hearings in the Superior Court in Santa Barbara county. And, if the majority is correct, the Supe rior Court has failed the test. There was no miscarriage of justice here. I would affirm the
order here under review.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.Michael J. Carrozzo, Judge

Superior Court County of Santa Barbara

__________________________ ____

Tracy Macuga

, Public Defender, and Matthew J. Speredelozzi, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters,
Chie f Assistant Attorney General, Susan Sullivan Pithey

, Assistant Att orney General , Paul M. Roadarmel, Jr. and John Yang , Deputy Attorneys General, for Plaintiff and Respondent.