Filed 5/5/16 P. v. Simpson CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.

WAYNE ROBER T S IMPSON,
Defendant and Appellant. B262752
(Los Angeles County Super. Ct. No. MA059626)

APPEAL from a judgment of the Superior Court of Los A ngeles County. Lisa M. Chung , Judge. Affirmed.

Law Office s of David M. Wallin and And rew J. Tan , for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and
Robert M. Snider , Deputy Attorney s General, fo r Plaintiff and Respondent.

___________________________________2

Wayne Robert Simpson’s grant of probation in the underlying case of committing a lewd act upon a child was revoked by the trial court upon a showing he violated the
conditions of probati on by receiving stolen goods , namely seven plastic boxes owned by
Rite

- Aid Corporation

. Simpson challenges the judgment on the grounds of in sufficiency of the evidence, abuse of discretion, and cruel and unusual punishment. We affirm the judgment.
FACTS Simpson pled no contest to committing a lewd act upon a child in violation of
Penal Code section 288, subdivision (a) 1

. On May 29, 2014, he was sentenced to eight years in state prison, but execution of the sentence was suspended pursuant to a plea

agre ement. As a result, h e was placed on five years formal probation on the condition he
serve 365 da ys in Los Angeles County Jail. Simpson was released for time served 2 and ordered to report to the probation officer in the A ntelope Valley. As further condi tions of his probation, Simpson was ordered to “obey all laws and orders of the court” as well as “all rules and regulations of the probation department.” He was also subject to various fines and assessments, including $300 to the Department of Justice Se xual Offender Program, a $2,400 restitution fine, an d restitution to the victim. Deputies from the Los Angeles County Sheriff’s Department conducted a probation compliance search at Simpson’s residence on October 16, 2014. They discovered seven plastic boxes, each marke d, “Property of Rite

- Aid Corp. Unauthorized possession, use or disposition m ay be subject to prosecution.” On November 21, 2014,
an information was filed, which alleged Simpson received stolen property in violation of section 496, subdi vision (a), “[o]n or between December 18, 2012 and October 16, 2014[.]”

1 All further section references are to the Penal Code unless otherwise specified.

2 He was given total cus tody credit of 365 days, representing 332 days of actual custody and 33 days of good time/work time.3

A contested probation violation hearing was held on February 13, 2015. David Freeland, Simpson’s landlord, testified he transferred the boxes from Simpson’s storage
unit to his o wn garage at the time of Simpson’s arrest. After he was granted probation, Simpson turned over to Freeland all of his property that he thought might be a violation of his probation, including a pocket knife and a folding utility tool . Freeland placed the se items in his safe. Freeland was not concerned the boxes constituted a probation violation because he had worked for “a lot of companies” and in his experience, companies marked their property this way . T hese markings often remained even after the comp any had disposed of the property. Manuel Mendez, an asset protection manager at the Rite

- Aid distribution center in Lancaster, testified the boxes were used by Rite

- Aid to transport products from its
dist ribution center to its stores. They were valued at approximately $8 to $12 each.
It was standard practice for t he boxes to be returned to the distribution center for reuse or destr uction

. According to Mendez
, if a box w as in the possession of someone who was
not associated with Rite

- Aid, that likely m eant it had been taken without permission

. Rite

- Aid managers and employees did not have authorization to give away the boxes.
Mendez identified the boxes in question through their barcodes. These boxes had been shipped to a store in Lancaster on Decembe r 18, 2012. That store subsequently closed. The boxes were taken out of rotation and shipped ba ck to the department handling the usage of the boxes. Mendez could find no further record for these boxes. The trial court found Simpson to be in violatio n of probation, reasoning that the markings on the boxes indicated knowledge that the boxes were stolen

. Probation was revoked and the eight

- year sentence was placed in effect

. Simpson timely appealed.
DISCUSSION Simpson challenges his conviction on t h re e grounds : ( 1) substantial evidence does not support a finding that he knew the boxes were stolen; ( 2) the trial court abused its discretion when it declined to reinstate probation ; and ( 3) the trial court’ s imposition of the eight

- year sentence consti tuted cr uel and unusual punishment. None of these argument s withstand scrutiny.4

I. Substantial Evidence Pursuant to section 1203.2, subdivision (a), a court is authorized to revoke probation “ if the interests of justice so require and the court, in its j udgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation

. . . .” Facts supporting revocation of probation must be proven by a preponderance of the evidence. ( People v. Rodriguez (1990) 51 Cal.3d 437 , 440

- 441.) We review a trial court’ s decision to revoke probat ion for abuse of discretion. ( People v. Matranga (1969) 27 5 Cal.App.2d 328, 333.)

“ Proof of the crime of receiving stolen property requires establishing that the property in question was sto len, that the defendant was in possession of it, and that the
defendant knew the property to be stolen.” ( People v. Anderson (1989) 210 Cal. App.3d 414, 420; § 496, subd. (a).) Simpson argues the People did not prove by a preponderance
of the evidence tha t he knew the boxes were stolen. He relie s on Freeland’s testimony: he helped Sim pson purge any prohibited items; he did not believe the boxes to be probation violations ; companies marked their property in this manner; and the markings
often remained eve n after the companies disposed of it

. Further, the warning merely stated that unauthorized p ossession m ay be subject to prosecution. Simpson argues it may not reasonably be inferred from this language that the boxes were stolen. Simpson
also relies on M endez’s failure to account for the boxes after they were taken out of
rotation and returned to the distribution center. Simpson theorizes, “it is possible that the boxes were discarded or given away.” Simpson ignores the remainder of Mendez’s testimony , however. Mendez testified the boxes would have been reused until they were destroyed. Mendez did not testify that it was Rite

- Aid’s policy to discard or give away the boxes once it took them
out of rotation. Instead, Rite

- Aid’s policy was just the opp osite. Rite

- Aid managers and employees did not have the authority to give away the boxes. Mendez also testified he
believed the boxes were stolen if they were in the possession of someone who was not
affiliated with Rite

- Aid . In any case, the markings o n the boxes were clear: “Property of
Rite

- Aid Corp. Unauthorized possession, use or disposition may be subject to5

prosecution.” T he trial court did not act arbitrarily or capriciously in revoking probation

on a showing Simpson received stolen property

. I I. Abuse of Discretion Simpson next contends the trial court should have reinstate d probation because it was a minor, unintended violation and he is capable of rehabilitation. According to Simpson, “ a bsent a showing of a willful violation of probation, it is abuse of discretion for the trial court to revoke probatio n and impose a prison sentence. ( People v. Galvan (2007) 155 Cal.App.4th 978, 980 ; see also [ People v. ] Zaring [ (1992 ) 8 Cal.App.4 th 362, 379].)” Simpson relies on the same facts as abov e to demonstrate there was no willful violation. For the same reasons as stated above, we find the People adequately proved knowledge and intent

. The evidence demonstrates Simpson committed a willful violation within five months of his probation

. Moreov er, there wa s ample evidence for the trial court to conclude that Simpson was not capable of rehabilitation. Simpson’s criminal history is extensive. He was convicted of drug

- related charges in 1991, 1994, 1998, 2001, 2007, and 2012. He was also convi ct ed of domestic violence charges in 1996, 2000, and 2011. He had previously been granted probation or parole in two cases, one in
1993 in a narcotics case and one in 2001 in a case involving corporal injury on a spouse
or cohabitant . Probation or parole w as revoked in both cases for various violations. Further, a t the time of his probation revocation hearing in this case, Simpson was on probation for misdemeanor driving under the influence. 3 In the underlying lewd act upon a child charge, Simpson was p resumptively ineligible for probation pursuant to section 1203, subdivisions (e)(4) and (e)(5). 4 Nevertheless, the trial court found that probation would best serve the interests of justice

3 The trial court terminated that grant of probation.

4 Section 1203 provides probation shall not be granted to any person who has been previously co nvicted of a violation of section 288 for lewd acts involving children or any person who has been previously convicted twice of a felony “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation[.]” (§ 1203, subd. (e).)6

because it would provide Simpson the opportunity to address his d rug and alcohol abuse. At the time of his sentencing, t he trial court warned Simpson of the “big axe hanging

over [his] head with that eight years that will come crashing down” if he commi tted any probation violations. Given these circumstances, it was n ot an abuse of discretion for the
trial court to refuse to reinstate probation

. III. Cruel and Unusual Punishment Lastly, Simpson challenges the trial court’ s revocation of probation on

c o nstitutional grounds, arg uing the imposition of an eight

- year ter m for receiving stolen property constitutes cruel and unusual punishment. Simpson misapprehends the crime for which he is punished. T he eight

- year sentence was imposed for the crime of committing a lewd act involving a minor under section 288 and not for the crime of receiving stolen property

. In any case, Simpson has forfeited the issue. ( People v.
Hawkins (1975) 44 Cal. App.3d 958, 968 ( Hawkins )

. ) Hawkins is instructive. Under strikingly similar circumstances, the court in that case explained: “ The defendant ’ s assertion that he was sub

jected to ‘cruel and unusual punishment,’ unsupported by authority, has not been timely raised on appeal. The revocation of probation is not

‘ punishment. ’ The ‘punishment’ of a state prison sentence was imposed at the original sentencing. On November 3, 1971, the state prison sentence was suspended when the defendant was placed on probation. This assignment of error should have been raised at
that time. It is not timely raised following a revocation of probation. ” ( Ibid. ) We reach
the same conclusion here.
DIS POSITION
The judgment is affirmed.

BIGELOW, P.J.
We concur:

RUBIN, J. GRIMES, J.