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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

 Defendant and Appellant.

2d Crim. No. B306288

(Super. Ct. Nos. 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 county 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.
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FACTUAL AND PROCEDURAL HISTORY

In 2018, Figueroa pled guilty to possession of heroin 

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 probation, including 120 days in jail. The 

following year, Figueroa pled guilty to second degree burglary 

(§§ 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 

violation, 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. Quarterman (2012) 202 Cal.App.4th 

1280, 1296.)

1 Statutory 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 hand 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 keyhole in the RV’s door. 

Based on this testimony, the trial court found 

Figueroa in violation of the terms of her 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 

improper 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 an order revoking 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 entire 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 to 
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the trial court[,] and resolve all inferences 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. (Urke, 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. Prosecutors 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 showing 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 while 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. 982-983 [reversing 

probation revocation decision due to lack of evidence as to when 

defendant reentered the country]; see also People v. Balkin (2006) 

145 Cal.App.4th 487, 492-493 [defendant erroneously 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 into
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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 

consideration 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 had 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. 

DISPOSITION

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 appellant 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 force 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

contemporaneous 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 

motorhome, 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 on the roof or near 

the motorhome. 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.4th 40, 87.)

The victim told the officer that he saw appellant on the 

roof. This is hearsay. But, appellant herself told the officer at 

the scene that she was the owner of the motorhome! This is an 

admission and it connects her to the motorhome and the 911 call. 

This was properly received into evidence pursuant to the wellrecognized exception to the hearsay rule. Coupled with the 

officer’s observations of a forcible attempt to enter the 
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motorhome, 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.5th 682, 689; 

People v. Maki (l985) 39 Cal.3d 707, 715-717.) And, for the first 

time, after the tampering of the front lock, the victim’s key would 

not open the lock. The officer saw this. This is not hearsay. This 

is some evidence of a recent 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. at 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 the 

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.4th

360, 368.)

Everyone, even the majority, knows that appellant was, at 

the very least, on the roof or trespassing near the motorhome 

because she told the arresting officer, perhaps mistakenly, that 

this motorhome belonged to her! She was so adamant 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 called, 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 Superior 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, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Paul M. Roadarmel, Jr. and John 

Yang, Deputy Attorneys General, for Plaintiff and Respondent.