Filed 7/30/15 P. v. Brown CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062707
v. (Super.Ct.No. FSB1400170)
KEVIN CHEVELL BROWN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell, Judge. Affirmed.
Joshua M. Mulligan, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Kevin Chevell Brown entered a plea agreement and pled
guilty to one count of assault by means of force likely to produce great bodily injury.
1 (Pen. Code1, § 245, subd. (a)(4).) The parties stipulated that the police reports provided a
factual basis for the plea. Defendant was sentenced immediately. In accordance with the
plea agreement, the court sentenced defendant to four years in state prison, but suspended
the sentence and placed him on probation for a period of three years, under specified
terms. The terms included the requirement that he serve 365 days in county jail. He was
given 16 days of custody credit. The court subsequently found defendant in violation of
his probation and imposed the four-year prison sentence.
Defendant filed a timely notice of appeal, challenging the finding that he violated
his probation. We affirm.
PROCEDURAL BACKGROUND
Pursuant to a plea agreement, defendant pled guilty to assault by means of force
likely to produce great bodily injury. (§ 245, subd. (a)(4).) At sentencing, the court
sentenced him to four years in state prison, but suspended execution of the sentence. On
January 24, 2014, the court placed him on probation for a period of three years, with one
of the conditions being that he serve 365 days in county jail. The court confirmed with
defendant that he read all of the terms of probation, that he understood them, that he
signed them, and that he received a copy of them. The court asked defendant if he had
any questions about any of them, and defendant said no. The court then asked if he
accepted all the terms of probation, and he said yes. Probation condition No. 3 required
defendant to “[r]eport to the Prob[ation] officer in person immediately upon release from
1 All further statutory references will be to the Penal Code, unless otherwise noted.
2 custody and thereafter once every fourteen (14) days or as directed.” The court reminded
defendant that it sentenced him to four years in state prison, and if he violated probation
and the court decided to send him to prison, it would be for four years. Defendant
agreed.
On July 10, 2014, defendant reported to the probation department for orientation
and assessment. He was again provided with a copy of the terms of his probation.
On July 18, 2014, defendant reported to probation for his weekly check in. After
that, defendant did not return to the probation office.
On August 29, 2014, a petition to revoke defendant’s probation was filed, alleging
that he failed to comply with probation condition No. 3.
On January 9, 2015, the court held a probation revocation hearing. Probation
Officer Nicholas Trujillo testified that he was assigned to write a supplemental report on
defendant, after defendant had been arrested on a bench warrant. Prior to writing the
report, he reviewed defendant’s probation file, and it was the probation department’s
policy to document every contact it had with a particular probationer in the Caseload
Explorer file system. Officer Trujillo confirmed that one of defendant’s probation
conditions required him to report to probation every 14 days, or as directed. Officer
Trujillo testified that defendant reported on July 10, 2014 for orientation, but he was not
assigned a probation officer that day. Probation officers were assigned geographically,
depending on where the probationers lived, and defendant reported that he was homeless.
Officer Trujillo testified that homeless probationers were told to report every week.
Defendant reported to the probation office on July 18, 2014, and saw the “officer of the
3 day.” Officer Trujillo explained that the officer of the day was assigned to see any
probationer who reported if their probation officer was not present or out in the field.
Defendant did not report after that. On cross-examination, Officer Trujillo testified that
there was no note in defendant’s file saying that the probation officer told defendant to
report weekly.
Defendant testified on his own behalf at the hearing. He said that he reported to
probation the day after he was released from custody. He spoke to a woman who
explained probation to him and talked about food stamps. Defendant testified that he
went back to probation the following week because he was instructed to follow up about
the food stamps. However, he said that when he was there, he did not ask about the food
stamps, but just “asked about probation.” On cross-examination, defendant testified that,
when he initially reported to probation, he said he was homeless, but they did not tell him
to come back at a certain time. Rather, he was told to come back the following week, just
for food stamps. Defendant testified that, after he left the probation office the second
time, he did not think he ever needed to go back. When asked if he remembered getting a
copy of his probation conditions, he said “yeah . . . when the Judge gave it to me.” When
asked whether he had been on probation before, defendant said no.
After hearing testimony and arguments from counsel, the court stated that it
appeared that defendant was sufficiently advised of his obligation to report to probation.
The court noted that defendant admitted on the witness stand that he was given a copy of
his probation conditions. Those conditions ordered him to report immediately upon
release, which he did, and to report once every 14 days or as directed. The court noted
4 that there was no information in any file that defendant was given a new order telling him
not to continue reporting. The court then found defendant in violation of his probation.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case and a few potential arguable issues: (1) whether there was sufficient evidence to
find that defendant violated the probation condition requiring him to report “every 14
days or as directed”; (2) whether defendant’s due process right to confront witnesses at a
Vickers2 hearing was violated when the prosecution used hearsay evidence and did not
produce the probation officer who personally interacted with him; (3) whether the
caseload explorer records lacked sufficient indicia of reliability to be used as evidence in
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Filed 7/30/15 P. v. Brown CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062707
v. (Super.Ct.No. FSB1400170)
KEVIN CHEVELL BROWN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell, Judge. Affirmed.
Joshua M. Mulligan, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Kevin Chevell Brown entered a plea agreement and pled
guilty to one count of assault by means of force likely to produce great bodily injury.
1 (Pen. Code1, § 245, subd. (a)(4).) The parties stipulated that the police reports provided a
factual basis for the plea. Defendant was sentenced immediately. In accordance with the
plea agreement, the court sentenced defendant to four years in state prison, but suspended
the sentence and placed him on probation for a period of three years, under specified
terms. The terms included the requirement that he serve 365 days in county jail. He was
given 16 days of custody credit. The court subsequently found defendant in violation of
his probation and imposed the four-year prison sentence.
Defendant filed a timely notice of appeal, challenging the finding that he violated
his probation. We affirm.
PROCEDURAL BACKGROUND
Pursuant to a plea agreement, defendant pled guilty to assault by means of force
likely to produce great bodily injury. (§ 245, subd. (a)(4).) At sentencing, the court
sentenced him to four years in state prison, but suspended execution of the sentence. On
January 24, 2014, the court placed him on probation for a period of three years, with one
of the conditions being that he serve 365 days in county jail. The court confirmed with
defendant that he read all of the terms of probation, that he understood them, that he
signed them, and that he received a copy of them. The court asked defendant if he had
any questions about any of them, and defendant said no. The court then asked if he
accepted all the terms of probation, and he said yes. Probation condition No. 3 required
defendant to “[r]eport to the Prob[ation] officer in person immediately upon release from
1 All further statutory references will be to the Penal Code, unless otherwise noted.
2 custody and thereafter once every fourteen (14) days or as directed.” The court reminded
defendant that it sentenced him to four years in state prison, and if he violated probation
and the court decided to send him to prison, it would be for four years. Defendant
agreed.
On July 10, 2014, defendant reported to the probation department for orientation
and assessment. He was again provided with a copy of the terms of his probation.
On July 18, 2014, defendant reported to probation for his weekly check in. After
that, defendant did not return to the probation office.
On August 29, 2014, a petition to revoke defendant’s probation was filed, alleging
that he failed to comply with probation condition No. 3.
On January 9, 2015, the court held a probation revocation hearing. Probation
Officer Nicholas Trujillo testified that he was assigned to write a supplemental report on
defendant, after defendant had been arrested on a bench warrant. Prior to writing the
report, he reviewed defendant’s probation file, and it was the probation department’s
policy to document every contact it had with a particular probationer in the Caseload
Explorer file system. Officer Trujillo confirmed that one of defendant’s probation
conditions required him to report to probation every 14 days, or as directed. Officer
Trujillo testified that defendant reported on July 10, 2014 for orientation, but he was not
assigned a probation officer that day. Probation officers were assigned geographically,
depending on where the probationers lived, and defendant reported that he was homeless.
Officer Trujillo testified that homeless probationers were told to report every week.
Defendant reported to the probation office on July 18, 2014, and saw the “officer of the
3 day.” Officer Trujillo explained that the officer of the day was assigned to see any
probationer who reported if their probation officer was not present or out in the field.
Defendant did not report after that. On cross-examination, Officer Trujillo testified that
there was no note in defendant’s file saying that the probation officer told defendant to
report weekly.
Defendant testified on his own behalf at the hearing. He said that he reported to
probation the day after he was released from custody. He spoke to a woman who
explained probation to him and talked about food stamps. Defendant testified that he
went back to probation the following week because he was instructed to follow up about
the food stamps. However, he said that when he was there, he did not ask about the food
stamps, but just “asked about probation.” On cross-examination, defendant testified that,
when he initially reported to probation, he said he was homeless, but they did not tell him
to come back at a certain time. Rather, he was told to come back the following week, just
for food stamps. Defendant testified that, after he left the probation office the second
time, he did not think he ever needed to go back. When asked if he remembered getting a
copy of his probation conditions, he said “yeah . . . when the Judge gave it to me.” When
asked whether he had been on probation before, defendant said no.
After hearing testimony and arguments from counsel, the court stated that it
appeared that defendant was sufficiently advised of his obligation to report to probation.
The court noted that defendant admitted on the witness stand that he was given a copy of
his probation conditions. Those conditions ordered him to report immediately upon
release, which he did, and to report once every 14 days or as directed. The court noted
4 that there was no information in any file that defendant was given a new order telling him
not to continue reporting. The court then found defendant in violation of his probation.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case and a few potential arguable issues: (1) whether there was sufficient evidence to
find that defendant violated the probation condition requiring him to report “every 14
days or as directed”; (2) whether defendant’s due process right to confront witnesses at a
Vickers2 hearing was violated when the prosecution used hearsay evidence and did not
produce the probation officer who personally interacted with him; (3) whether the
caseload explorer records lacked sufficient indicia of reliability to be used as evidence in
a Vickers hearing, thereby violating his due process right to a fair hearing; and (4)
whether the court abused its discretion in imposing the suspended prison sentence, when
evidence of the violation was minimal, the probation department recommended
reinstating him on probation, and the only violation was a failure to report. Counsel has
also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has done. In a brief, handwritten letter, defendant asserts that he was not informed
that he had to check in every week. He states that he reported to probation upon release
2 People v. Vickers (1972) 8 Cal.3d 451.
5 from custody and was told to return the following week, which he did. Defendant argues
that he does not feel he should be punished for the probation department not doing its job
correctly. He complains that he was never able to speak with his probation officer, but
only with the officer of the day. Defendant claims that, when he asked the officer of the
day about reporting, the officer said defendant “was done.” Thus, defendants feels that
his conviction should be dismissed because he was not given a fair opportunity to comply
with his probation terms, since he was told he no longer needed to report.
The record shows that, at the time of sentencing, the court confirmed with
defendant that he read, understood, and accepted all of the probation terms. He also
acknowledged that he received a copy of them. The court gave defendant a chance to ask
any questions he had about his probation terms, but he had no questions. The record
shows that probation condition No. 3 clearly required defendant to “[r]eport to the
Prob[ation] officer in person immediately upon release from custody and thereafter once
every fourteen (14) days or as directed.” Moreover, at the probation revocation hearing,
defendant testified that the judge gave him a copy of his probation terms. In addition,
contrary to defendant’s claim, the court stated there was no evidence that defendant was
told not to continue reporting. We further note that the evidence shows defendant had
seven prior felony convictions, dating back to 1993. He had been on probation five
times, and his probation was revoked three times. Thus, defendant was clearly familiar
with the criminal justice system and with being on probation. Ultimately, defendant was
responsible for complying with his probation conditions, and the evidence demonstrated
that he simply failed to do so.
6 Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST J.
We concur:
RAMIREZ P. J.
CODRINGTON J.