Filed 2/18/22 P. v. Cummings 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E076942
v. (Super.Ct.No. 21PA000383)
DAVID TYMEL CUMMINGS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alan L.
Amann, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
The trial court revoked defendant and appellant David Tymel Cummings’s parole
after he failed to charge the battery on his global positioning system (GPS) tracking
device as required and failed to attend his sex offender treatment program. The court
sentenced him to serve 180 days in county jail. On appeal, defendant contends (1) the
trial court erred when it admitted inadmissible hearsay evidence at his parole revocation
hearing, and (2) the trial court erred in finding he willfully violated his parole. We reject
these contentions and affirm the order revoking his parole.
II.
BACKGROUND
On September 27, 2020, defendant was released on parole following a four-year
prison term for sexual battery in violation of Penal Code1 section 243.4, subdivision (a).
One of his parole conditions required him to wear a GPS or other device for continuous
electronic monitoring. (§ 3010.10 [requiring paroled sex offenders to wear a GPS
device.].) Defendant was required to charge his GPS device at least twice a day (every
12 hours) for a full hour each time. Additionally, he was required to immediately contact
his parole agent if the GPS device vibrated or made an audible tone. A separate parole
condition required him to attend and participate in an approved sex offender program that
consisted of group and individual treatment sessions.
1 All further statutory references are to the Penal Code unless otherwise stated. 2 Following a parole revocation petition alleging that defendant had disabled his
GPS device and failed to attend a group session of his treatment program, the court held a
formal parole violation hearing. At the hearing, the People presented the testimony of the
parole agent who had been assigned to supervise defendant. The agent’s unit monitored
the locations of 296 sex offenders via a GPS monitoring system called VeriTracks.
The agent testified that on March 11, 2021, the VeriTracks monitoring center
notified his supervisor that defendant’s device had been rendered inoperable by a dead
battery. The agent also received a text from the monitoring system alerting him that
defendant’s battery was dead. The agent looked defendant up on the VeriTracks system
and verified that his battery was dead. According to the VeriTracks file, the battery went
dead at approximately 1:34 a.m.
The March 10, 2021 VeriTracks records indicated that defendant charged the GPS
device in the morning for approximately 55 minutes and then in the evening for
approximately one minute. The agent testified that both of these charging attempts did
not comply with defendant’s requirement to maintain his GPS device.
After the agent learned that defendant’s GPS was dead, he tried to contact
defendant by phone but received a message indicating the recipient could not be reached
at that time. Defendant made no attempt to contact the agent. The agent called
defendant’s mother, who told him that she had spoken to defendant via Facetime on his
computer, and he told her that he was on his way to the parole office. The agent told her
that defendant was in “dead battery” mode, and he needed to report immediately to get on
the charger. 3 Defendant was arrested at approximately 10:30 a.m. on March 11, 2021, a block
and a half from the parole office at the Daily Press building.
As to the second alleged violation, the agent testified that defendant was
participating in group and individual sex offender therapy at “Open Door.” The agent
learned that defendant had missed a March 10, 2021 session of that program through an
email that day from the Open Door office manager.
Due to Covid-19, the sex offender program was being held remotely via Zoom or
GoToMeeting. Defendant was homeless. The agent testified that he did not know if
defendant had access to Zoom; however, he said if he did not, then he could call in and
use telephone audio. The agent had several times observed defendant with a phone,
including when he used his phone to attend an intake of the Open Door program.
Defendant had changed his phone number and phone several times.
The agent had told defendant that the parole office could assist him with attending
his sex offender class. Indeed, the parole office had paid for phones for other parolees so
that they could attend sex offender treatment.
Defendant testified that on March 10, 2021, from approximately 3:00 to 5:00 p.m.,
he was in front of the parole office to charge his GPS device and to attend an Open Door
session. According to defendant, the agent or some other representative was supposed to
be there to aid him in taking his class because he did not have a working cell phone. He
acknowledged he attempted to charge his device at 5:04 p.m. while he was at the parole
office because he was “trying to ensure that [he] got a good charge in order to make it
through 12 hours that would be needed in order to go [] until the next morning.” 4 However, he was unable to do so because the power had been turned off. Therefore,
defendant went to the Daily Press building, where he plugged his GPS device into an
external outlet to charge it. Defendant claimed that he left his device plugged into the
outlet but acknowledged that the Daily Press would sometimes turn off their external
outlets because homeless people using the outlets were “basically . . . stealing power.”
Defendant acknowledged that he spoke with his mother via FaceTime the morning
of his arrest at approximately 8:00 a.m. He said he used his fiancé’s cell phone to make
the call. He explained to his mother that he did not know whether the plug that he had
used at the Daily Press worked properly.
Following argument by the parties, the court found that the People had shown by a
preponderance of the evidence that defendant had violated both parole conditions by
failing to attend his sex offender treatment program and by disabling his GPS device.
The court revoked and reinstated defendant’s parole with the condition that defendant
serve 180 days in county jail. Defendant timely appealed.
DISCUSSION
Defendant argues that the trial court violated his due process rights by admitting
“unsubstantiated” hearsay at his parole revocation hearing—namely, the content of the
VeriTracks records showing that he failed to maintain the required battery charge on his
GPS device, and the email from Open Door showing he missed a treatment session.
Defendant further contends that the trial court abused its discretion by finding he
willfully violated his parole. For the reasons set forth below, we disagree and affirm. 5 A. Mootness
Preliminarily, we note that the parties agree that this appeal is not moot. Though
defendant has already served his 180-day sentence, he remains on parole until October
19, 2023, and a ruling in his favor in this appeal would reduce his current parole term by
180 days. (See § 3000, subd. (b)(6) [“Time during which parole is suspended because the
prisoner . . . has been returned to custody as a parole violator shall not be credited toward
any period of parole unless the prisoner is found not guilty of the parole violation.”];
People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369 [notwithstanding completion
of sentence, appeal not considered moot where the sentence may have negative collateral
consequences.].) Courts in some cases have found appeals moot where the defendant
was no longer in confinement or on parole when the appeal was heard. (See, e.g., People
v. DeLeon (2017) 3 Cal.5th 640, 645-646.) Because defendant is still serving a parole
term that could be shortened if he prevails here, we agree with the parties that the appeal
is not moot.
B. Hearsay Objections
Hearsay is a “statement that was made other than by a witness while testifying at
the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd. (a).) At trial, hearsay evidence is admissible only if it falls within an
established exception to the hearsay rule. (Evid. Code, §§ 1200, subds. (a) & (b), 1201.)
However, at probation or parole revocation hearings, hearsay “that bears a substantial
guarantee of trustworthiness is admissible . . . . ‘In general, the court will find hearsay
evidence trustworthy when there are sufficient “indicia of reliability.” ’ [Citation.]” 6 (People v. Buell (2017) 16 Cal.App.5th 682, 689.) “[T]he revocation of parole [or
probation] is not part of a criminal prosecution and thus the full panoply of rights due a
defendant in such a proceeding does not apply to parole [or probation] revocations.”
(Morrissey v. Brewer (1972) 408 U.S. 471, 480; see People v. Arreola (1994) 7 Cal.4th
1144 (Arreola).) The admission of hearsay at a parole revocation hearing may be error
where it fails to satisfy the minimal due process requirements for the hearing, such as the
opportunity for the defendant to be heard and to present evidence, and “the right to
confront and cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation).” (Morrissey, at p. 489; see Arreola, at
pp. 1152-1154.)
Hearsay thus should be excluded from a probation or parole revocation hearing
when the “need for confrontation is particularly important . . . because of the opportunity
for observation of the witness’s demeanor.” (Arreola, supra, 7 Cal.4th at p. 1157.)
Hearsay evidence that is properly viewed as a substitute for live testimony, such as
statements by victims or witnesses, should also be excluded. (People v. Abrams (2007)
158 Cal.App.4th 396, 405 (Abrams); see Arreola, supra, 7 Cal.4th at p. 1157.)
On the other hand, at a parole revocation hearing, hearsay is admissible when
confrontation will not materially aid the decisionmaker. This may be the case with
records that show “routine matters such as the making and keeping of probation
appointments, restitution and other payments, and similar records of events.” (Abrams,
supra, 158 Cal.App.4th at p. 405; see Arreola, supra, 7 Cal.4th at p. 1157.) A probation
or parole officer is not likely to have personal recollection of these matters and would 7 have to consult records, such as testifying to the failure of a parolee to report. (People v.
Gomez (2010) 181 Cal.App.4th 1028, 1038 (Gomez).) Cross-examination and demeanor
of the witness are not significant factors in evaluating the credibility of an officer’s
foundational testimony about the contents of the parole agency’s records. Such records
generally bear indicia of reliability and are admissible at a parole revocation hearing.
(Ibid.; Arreola, at p. 1157; Abrams, at p. 405.)
We review the trial court’s admission of hearsay evidence for an abuse of
discretion. (People v. Rodriguez (2017) 16 Cal.App.5th 355, 373 (Rodriguez).) We will
not disturb the court’s ruling “ ‘except on a showing the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ [Citation.]” (People v. Goldsmith (2014) 59 Cal.4th 258, 266
(Goldsmith).)
1. VeriTracks Records
Defendant contends that the VeriTracks device charging and battery expiration
records constituted inadmissible hearsay. The People contend that the evidence was not
hearsay but rather a computer-generated record that was the result of an automated
process free of human intervention. We agree with the People that the evidence did not
qualify as hearsay. While upon objection a proponent of introducing computer-generated
records must provide foundational evidence the computer was operating properly, such
evidence is not hearsay. (Rodriguez, supra, 16 Cal.App.5th at p. 374.) Although the trial
court did not overrule the defendant’s objection on this basis, we may affirm the trial
8 court’s ruling if it is correct upon any theory supported by the record. (People v. Zapien
(1993) 4 Cal.4th 929, 976.)
In Rodriguez, the court concluded that “[t]he computer-generated report of the
GPS data generated by defendant’s ankle monitor did not consist of statements of a
person as defined by the Evidence Code, and did not constitute hearsay as statutorily
defined.” (16 Cal.App.5th at p. 381.) Rodriguez explained that other cases, including
out-of-state cases, distinguished “ ‘between computer-stored records, which memorialize
the assertions of human declarants, and computer-generated records, which are the result
of a process free of human intervention.’ ” (Id. at p. 380.) Because in that case the
defendant’s ankle monitor automatically transmitted information to the software server,
from which a GPS report was retrieved, there was “ ‘no statement being made by a
person regarding the data information so recorded.’ ” (Id. at p. 381.)
Here, like the GPS evidence in Rodriguez, the VeriTracks computer-generated
evidence did not constitute hearsay. As in Rodriguez, defendant’s device automatically
sent signals of his location to the GPS, which automatically generated the computer data
about defendant’s location on the specific dates and times, as well as his charging history,
so that there was no statement being made by a person regarding the data information
being recorded. (See Goldsmith, supra, 59 Cal.4th at pp. 273-274 [digital photographs
automatically taken by a machine and data, such as date and time, which a computer
automatically generates and imprints are not hearsay]; People v. Nazary (2010) 191
Cal.App.4th 727, 754 [computer-generated receipts, which show the date, time, and
9 totals, are not statements of a person], overruled on other grounds in People v. Vidana
(2016) 1 Cal.5th 632, 647-648.)
The agent testified to his familiarity with, and knowledge of, how the VeriTracks
system worked. He described how the Victorville GPS unit used VeriTracks to monitor
GPS devices for the 296 sex offenders under its supervision and explained how it would
keep track of information such as their “voltage, the batteries, the location, and it also
stores all their informational data, addresses.” While parole agents could place notes
from the VeriTracks information in a parolee’s case file, the agent explained that “the
actual documentation is stored in the VeriTracks system.” He testified that the system
“notifies us of events, alerts, charging. It . . . shows us how long the person is charged,
when they plugged in, when they unplugged. It monitors pretty much every detail of the
device, itself.” The agent had used VeriTracks numerous times to locate and make
contact with defendant. He testified that when VeriTracks system detects a dead battery
on the GPS device, it triggers VeriTracks to send a text message to the parole agent of
record. The agent further explained that this happened in defendant’s case, causing him
to personally review defendant on the VeriTracks system, verify that he had a dead
battery, and observe his charging patterns on March 10, 2021.
While defendant claims the information in the VeriTracks system is not wholly
computer-generated, he does not dispute that the information about charging times, dead
battery, and location was all computer-generated. That information did not represent
statements placed into the computer by out-of-court declarants. Additionally, there is no
indication here that parole agents can alter or manipulate someone’s GPS data transmitted 10 by the device and depicted in the VeriTracks computer system. (See Rodriguez, supra,
16 Cal.App.5th at p. 381.) The critical information in this case (including the device’s
battery life and defendant’s charging history) was computer generated and thus did not
constitute hearsay under California law. Therefore, the trial court did not abuse its
discretion in permitting the agent to testify about the VeriTracks records.
2. Open Door Records
Defendant contends that the trial court violated his right to due process when it
admitted the agent’s testimony to the contents of the email he received from Open Door
pursuant to the business record exception to hearsay. (Evid. Code, § 1271.) The People
argue that even if the evidence was hearsay, it was nevertheless admissible as reliable
documentary evidence. We agree with the People.
In this case, the agent testified about defendant’s failure to perform a required act:
defendant did not attend his sex offender treatment program on March 10, 2021. As in
Abrams and Gomez, the presence of the Open Door office manager, “likely would not
have added anything to the truth-furthering process, because [she] would be testifying to
a negative.” (Abrams, supra, 158 Cal.App.4th at p. 404.) We have no reason to suspect
that the office manager’s demeanor would matter in evaluating the credibility of her
foundational testimony pertaining to the contents of an email regarding defendant’s
failure to attend the program. (Arreola, supra, 7 Cal.4th at p. 1157.) An email about this
simple matter that a person did not attend a session bears “the requisite indicia of
reliability and trustworthiness so as to be admissible” in a parole revocation hearing.
(People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066-1067 [single-page report from 11 drug program manager stating a defendant had been terminated from the program due to
too many absences was “akin to the documentary evidence that traditionally has been
admissible at probation revocation proceedings” and “bore the requisite indicia of
reliability and trustworthiness so as to be admissible.”].) The purpose of calling the
office manager to testify would be simply to authenticate the email containing the
information that she would likely not recall from memory. (Arreola, at pp. 1156-1157.)
We have no reason to conclude that it would be important for defendant to confront the
office manager so the trial court could evaluate her demeanor.
In any event, defendant does not dispute that he did not attend his sex offender
treatment program on March 10, 2021. The agent testified that he learned from a
telephone call to an Open Door employee that defendant had missed a session on March
10, 2021, and had made no attempt to attend the program. In the absence of any evidence
contradicting this information in the email, we cannot see a due process violation in
failing to call the office manager to testify as to the truth of the contents of her email.
(Gomez, supra, 181 Cal.App.4th at p. 1039.) The trial court did not abuse its discretion
by permitting the agent to testify regarding the contents of the email from Open Door.
C. Willful Violation of Parole
Defendant contends the trial court’s revocation order must be reversed because the
evidence was insufficient to support a finding that he willfully disabled his GPS device or
failed to attend his sex offender treatment program. We disagree.
A trial court has “very broad discretion” when determining whether revocation is
warranted. (Rodriguez, supra, 51 Cal.3d at p. 443.) We review a revocation order for 12 abuse of discretion and examine the trial court’s factual findings for substantial evidence.
(People v. Butcher (2016) 247 Cal.App.4th 310, 318.)
Under the substantial evidence standard, our task is to decide “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.) If the evidence
reasonably justifies the trier of fact’s findings, the reviewing court’s opinion that the
evidence might also support a contrary finding does not warrant reversal. (People v.
Jones (2013) 57 Cal.4th 899, 961.)
Findings are “based upon a preponderance of evidence” that may include hearsay
from parole agents. (§ 3044, subd. (a)(5).) “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge . . . to determine the credibility of a witness and the
truth or falsity of the facts upon which a determination depends. [Citation.] We resolve
neither credibility issues nor evidentiary conflicts; we look for substantial evidence.
[Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
“Any person who is required to register as a sex offender (Pen. Code, § 290) and
who is released on parole upon the condition they wear a global positioning system
(GPS) device, or other electronic monitoring device (§ 3010.10, subd. (a)), is prohibited
from removing, disabling, or rendering the device inoperable. (§ 3010.10, subd. (b)). If a 13 parolee violates this provision, the parolee is required to be incarcerated in a county jail
for 180 days. (§ 3010.10, subd. (e).)” (People v. Schaffer (2020) 53 Cal.App.5th 500,
503, fn. omitted.)
To revoke parole, the evidence must support a conclusion that defendant violated
his or her terms of parole willfully. (See, e.g., People v. Galvan (2007) 155 Cal.App.4th
978, 984 [probation violation finding reversed because failure to report to probation as
required was not willful where defendant had been deported after release from county
jail]; People v. Zaring (1992) 8 Cal.App.4th 362, 379 [probation violation finding
reversed where appearing 22 minutes late for a hearing was not willful due to a change in
circumstances that required the defendant to take her children to school before going to
court].) Willfulness requires “ ‘simply a purpose or willingness to commit the act . . . ,’
without regard to motive, intent to injure, or knowledge of the act’s prohibited character.
[Citation.] The terms imply that the person knows what he is doing, intends to do what
he is doing, and is a free agent. [Citation.] Stated another way, the term ‘willful’
requires only that the prohibited act occur intentionally. [Citations.]” (In re Jerry R.
(1994) 29 Cal.App.4th 1432, 1438.)
In this case, defendant’s GPS parole condition required him to participate in
continuous electronic monitoring using a GPS device and charge the battery on his device
at least twice a day for a full hour, approximately 12 hours apart. He was also required to
contact his parole agent immediately when the GPS device vibrated or made an audible
tone. The agent testified that he had gone over the terms and conditions of his parole
with defendant, and it was uncontroverted that defendant understood these terms. 14 The agent testified that when defendant had previously told him he was having
issues with the device, the agent told him he was not charging it correctly and showed
him how it should be plugged in. Despite this, the charging records indicate that on
March 10, 2021, and March 11, 2021, defendant charged the GPS for 55 minutes on the
morning of March 10, but thereafter his charging periods were intermittent and short,
lasting only 60 to 90 seconds. Defendant initially claimed that he was unaware of
problems with the outlet, thought his device was charging consistently, and denied
hearing any audible vibrations indicating that his battery was dying. He then contradicted
himself and admitted that he knew there was a problem with the outlet and worried
whether the device was charged properly. Specifically, defendant testified that the outlet
at the Daily Press tended to be unreliable because the Daily Press would sometimes turn
off the power, but he also said a “big storm” had “[blown] through” the previous day,
causing power outages. Defendant acknowledged that when he spoke to his mother on
the morning of March 11, he told her he needed to go to the parole office to charge his
device because he was not sure the device had charged properly at the outlet at the Daily
Press. Defendant nevertheless did not go to the parole office or contact his parole agent,
as required by his parole terms. While he used his fiancé’s phone to call his mother, he
chose not to use the same phone to call his parole officer because he would violate his
parole terms by being with his fiancé, another felon.
The trial court was free to disregard defendant’s testimony as not credible and
conclude based upon the agent’s testimony that there was sufficient evidence that
defendant willfully violated the terms of his parole. Although defendant claimed his 15 device did not emit an audible vibrational tone to alert him to the dying battery, the agent
testified that when he retrieved the GPS device and plugged it in, it worked just fine. The
agent testified that he was familiar with the outlet at the Daily Press where defendant and
other parolees charged their devices and, contrary to defendant’s claims, it worked fine.
Even defendant acknowledged that his fiancé had used the same outlet at the Daily Press
to charge her cellphone and managed to get a full charge. The agent further explained
that defendant’s charging history involved having his device on and off the charger. It
was within the court’s discretion to accept the agent’s testimony, which provided
substantial evidence supporting the court’s finding that defendant willfully violated the
terms of his parole by not properly charging his GPS device and failing to immediately
contact his parole agent.
Substantial evidence likewise supported the trial court’s finding that defendant
willfully violated the terms of his parole by failing to attend a session of the Open Door
sex offender treatment program. While he claimed he stood outside the parole office on
March 10, 2021, from 3:00 p.m. to 5:00 p.m. because he assumed that his parole agent or
someone else at the parole office would assist him in accessing the class, defendant made
no attempt to contact the agent. Defendant offered no evidence that he made any attempt
to contact anyone at the parole office to assist him, nor that he tried to contact Open Door
for assistance. The failure to take any initiative to get assistance to attend his program
supports the trial court’s finding of a willful violation of his treatment condition. (See
Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787 [a person’s “[l]ack of diligence may be
16 deemed willful in the sense that the party understood his obligation, had the ability to
comply, and failed to comply.”].)
Having found substantial evidence to support the trial court’s ruling, we must
affirm the trial court’s finding that defendant willfully violated the terms of his parole.
III.
DISPOSITION
The order finding defendant in violation of his parole is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
RAMIREZ P. J.
CODRINGTON J.