Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C160389
Dondero, J.
The trial court revoked defendant’s probation on the basis of commission of new criminal offenses, and imposed a previously suspended three-year state prison term. Defendant complains in this appeal that the trial court erred by proceeding with a probation revocation hearing before he was tried for the new charged offenses, and that the finding of a probation violation is not supported by the evidence. We conclude that the trial court’s denial of defendant’s request for continuance of the probation revocation hearing was not error, and the evidence supports the finding of a probation violation. We therefore affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On February 3, 2009, defendant entered a negotiated plea of no contest to one count of dissuading a witness from testifying (Pen. Code § 136.1, subd. (c)(1)), in exchange for dismissal of the remaining charges filed against him. At a sentencing hearing on March 20, 2009, the trial court sentenced defendant to the middle term of three years in state prison, suspended execution of sentence, and placed defendant on probation for five years. The court articulated the terms of a 10-year restraining order imposed on defendant as part of his felony probation that prohibited him from direct or indirect contact with the victim and required him to stay away the victim’s job, her person, her home, her vehicle, the University of California (UC), Berkeley campus where she worked, and other specified places she frequented. A criminal protective order (§ 1203.097, subd. (a)(2)) filed on March 20, 2009, reiterated the terms and conditions of the 10-year restraining order, including the prohibition against contact with any third parties for the purpose of talking about the victim.
Further statutory references are to the Penal Code unless otherwise noted.
A petition to revoke defendant’s probation was filed on June 23, 2009, which alleged that he violated his probation by disobeying the terms of the restraining order, in violation of section 166, subdivision (a)(4) (contempt of court). Following a probation revocation hearing, the trial court ruled that defendant violated the terms of his probation, and ordered him to serve 120 days in county jail. The criminal protective order was modified to delete the provision that prohibited contact by defendant “with any third parties” to discuss the victim, as an invalid term. The court also made the remaining provisions of the 10-year order “part of the terms and conditions of probation pursuant to [section] 1203.1.”
In consolidated appeals from defendant’s entry of a no contest plea and the trial court’s subsequent revocation of his probation, defendant claimed that the probation conditions previously imposed upon him pursuant to a plea bargain were invalid. We concluded that as part of his plea defendant knowingly, voluntarily, and expressly waived his right to seek review of the probation conditions, and dismissed the appeals.
Another petition to revoke defendant’s probation was filed in February of 2010, which alleged that defendant violated the conditions of his probation by violating Penal Code section 115 and Government Code section 6201. At a subsequent probation revocation hearing the trial court admitted evidence presented at the preliminary examination in a separate criminal case filed against him that alleged the offenses of offering a false or forged instrument (Pen. Code, §115, subd. (a)), and falsification of an official document (Gov. Code, § 6201), and received additional testimony.
Defendant was held to answer after the preliminary examination. The separate criminal action (No. 163117) was dismissed at the request of the prosecution once defendant was found in violation of his probation and the state prison term was imposed in the present case.
Following defendant’s entry of a no contest plea, he obtained an order (the order) from the trial court dated May 28, 2009, for return of his personal property previously seized by the University of California Police Department (the Department) during a search of his residence. An asterisk and related handwritten note at the bottom of the first page of the order declared that the return of property was limited to those items listed on the two attached pages of a property inventory of items taken during the search that were “initialed by Deputy District Attorney” Lindsay Walsh.
Defendant was thereafter advised by the Department that he was required to produce a file-stamped copy of the order to obtain a return of his seized property. Police Specialist Dennis Traille described the procedures for retrieval of property in the Department’s possession. The person “looking to retrieve their property” must produce the “original document, ” file-stamped and “signed by the Court, ” along with a photo identification. If the person sends “an agent in” to obtain the property, the agent must have a “photo ID” and “written statement” designating authority to act for the person.
In January of 2010, defendant requested a file-stamped copy of the order from the court clerk. The trial court declined to file-stamp the order submitted by defendant, but put the matter on calendar. On January 26, 2010, the court “issued a new order” that was file-stamped by the court clerk. A copy of the file-stamped order that was given to defendant included an attached property list with the initials “LW” placed in the spaces for specified items. The trial court also counseled defendant that he was restrained from personal presence on the UC campus, so he must “authorize somebody” else to take the order to obtain his property.
On the morning of January 27, 2010, defendant contacted the UC campus police department. Traille testified that he received a voice mail telephone message from defendant in which he stated, in reference to case number 07-03896, that “I have the release form for all my property sealed from the courts, and I’m hoping to send someone to pick it up tomorrow.” Defendant repeated that he “had the authorization to get all of his property back, ” in another telephone call to Traille, and asked “what the procedure was.” Defendant also mentioned “several names” of appointed agents who may appear for him to obtain his property, one of whom was Rosa Wilridge. Traille notified defendant that an agent must have a photo identification and a signed letter of authorization.
About 2:30 on the afternoon of January 27, 2010, defendant’s mother Rosa Wilridge, and the mother of his children Sarah Beatty, appeared at the Department to collect defendant’s property pursuant to the order. Wilridge gave a “packet” of documents to Sherree Wiezer, who worked for the Department. The packet contained an authorization letter, a file-stamped copy of the order, and a copy of the search warrant inventory and affidavit. Wilridge added a photocopy of a driver’s license.
Traille examined the packet, which was given to him by Wiezer. The first page was a handwritten letter signed by defendant that specified the criminal case number and the “names of agents, ” one of them Wilridge, sent to “pick up his items.” The second page was the “cover sheet from the court for order of return of defendant’s property.” On the bottom of the order was “an asterisk” that referred “to the items initialed by Deputy District Attorney on the attached two pages.” Traille noticed that the inventory of items seized during the search contained on the two following pages did not have “any asterisk or any initials next to them for release.” The final page of the packet was a photocopy of the California identification card for Wilridge.
After scrutinizing the packet Traille was concerned with two irregularities. First, the court order was signed on May 28, 2009, but was not file-stamped until January 26, 2010. Second, although the court order had an asterisk that mentioned initialed items to be released, the inventory of items on the attached pages did not have any asterisk or initials. Traille also “did not see any type of colored stamp or signature from the court on either of the two following pages, ” as he expected.
Traille gave the packet to the Department’s “detective” who was “involved with the case, ” Sabrina Ryke. Detective Ryke in turn conveyed the packet to Inspector Kim Tejada of the Alameda County District Attorney’s Office, to check with Deputy District Attorney Lindsay Walsh on the status of the adjudication of defendant’s motion for return of property. Walsh explained to Tejada that the hearing on the motion “did not occur, ” and had been continued to February 23, 2010.
Tejada examined the documents in the packet. He noticed three uncommon facets of the order: the order was dated May 2009, whereas the endorsement date was January 2010; the asterisk and associated handwritten note; and the reference to a “Deputy District Attorney” without a name. Further, the two pages of the search warrant return inventory stapled to the order appeared to be a form document that had been left at the location of the search, did not have any initials, and had no magistrate signature.
Tejada then compared the documents in the packet with those in the court file. The minute order for the hearing on January 26, 2010, indicated that the “entire motion to return property was continued to February 23rd, 2010, and that no other action was taken that day.” Pages two and three of the court file, which had three columns and listed the property taken, were “entirely different” from the same pages in the packet submitted by Wilridge: the first column bore an “evidence number” for each item described in the second column; and the third column had blank underscored spaces, some of which had the “cursive initials ‘LW’ ” Tejada observed that the handwriting associated with the asterisk on the first page of the order was “consistent” with a fax from defendant’s attorney.
Testimony was also adduced from Wilridge and Beatty. They were present at the hearing on the motion to return property on January 26, 2010, when defendant gave the court a document, which was stamped and given back to him along with “a stack of papers.” Both Wilridge and Beatty went to the Department on January 27, 2010, to “pick up the property” for defendant. Wilridge received “about 10” documents from Beatty, which she “just gave” to the clerk. One of the documents had a “colored seal” stamped on it and “nothing attached to it.” They did not review the documents before giving them to the clerk.
At the conclusion of the parole revocation hearing on April 27, 2010, the trial court found that defendant violated his probation by falsifying the property return order with intent “to defraud to get property back.” Defendant’s probation was revoked, and the three-year state prison sentence was imposed. This appeal followed.
DISCUSSION
I. The Denial of Defendant’s Motion to Continue the Probation Revocation Hearing.
Defendant argues that the trial court erred by denying his motion to continue the probation revocation hearing until resolution of the pending separate criminal proceedings on the charges of offering a false or forged instrument (Pen. Code, § 115, subd. (a)), and falsification of an official document (Gov. Code, § 6201). Defendant points out that the “most desirable method for handling criminal and probation revocation proceedings is to wait for the disposition of criminal proceedings before initiating probation revocation proceedings. (People v. Coleman (1975) 13 Cal.3d 867, 896.)” (Coleman) He therefore asserts that the trial court’s improper “manipulation of the legal process” deprived him of “his right to due process” by granting the prosecution the opportunity to punish him “for the charged crimes based on evidence that otherwise would not have been sufficient to convict him under the more difficult standard of reasonable doubt.”
At the hearing defendant also complained of “unconstitutional errors in the probation reports, ” although as we read the record he did not specifically seek to continue the hearing for that reason.
We find no error in the trial court’s refusal to postpone the probation revocation hearing. The decision in Coleman does not support defendant’s contention that error is committed if the court proceeds with a probation revocation hearing before trial on criminal charges derived from the same conduct. In Coleman, supra, 13 Cal.3d 867, the defendant’s probation revocation hearing was held before he was tried on the collateral criminal charges. To avoid incriminating himself at the subsequent criminal trial, the defendant elected not to testify at the probation revocation hearing. The California Supreme Court articulated a rule of use immunity in Coleman where a defendant is subject to probation revocation proceedings upon grounds that are also the basis for criminal charges. (People v. Ledesma (2006) 39 Cal.4th 641, 692; People v. Kiney (2007) 151 Cal.App.4th 807, 813–814.) The courtin Coleman, at page 889, declared: “[U]pon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationer’s revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceeding are so clearly inconsistent as to warrant the trial court’s admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing.” (See also People v. Humiston (1993) 20 Cal.App.4th 460, 473.) As a proposal to avoid the self-incrimination issue and protect the probationer’s right to be heard at the revocation hearing, the court added: “Finally, we wish to note that the most desirable method of handling the problems of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings.” (Coleman, supra, at p. 896.)
The exclusionary rule announced in Coleman does not require the disposition of criminal proceedings before a probation revocation hearing is held. Rather, the Coleman rule is that “If the revocation hearing is held first, the probationer’s testimony at that hearing is inadmissible at the later criminal trial.” (People v. Bracey (1994) 21 Cal.App.4th 1532, 1548; see also People v. Marlow (2004) 34 Cal.4th 131, 148.) The purpose of the exclusionary rule is to protect the probationer’s right to be heard at the revocation hearing, and to remove any incentive to schedule the revocation hearing in advance of trial solely in hopes of obtaining incriminating evidence. (People v. Ledesma, supra, 39 Cal.4th 641, 692; Coleman, supra, 13 Cal.3d 867, 873–874, 891; People v. Kiney, supra, 151 Cal.App.4th 807, 813–814; People v. Humiston, supra, 20 Cal.App.4th 460, 473.)
The court’s suggestion in Coleman to conclude criminal proceedings before commencing a revocation hearing was merely an alternative to the use immunity rule, not a procedural mandate. To the contrary, “Probation revocation proceedings and criminal proceedings based on the same conduct follow separate procedural tracks. They may be pursued in separate courts or even different counties. The revocation hearing may precede the criminal trial or vice versa.” (People v. Bracey, supra, 21 Cal.App.4th 1532, 1548.) “Whether a revocation hearing should be held before trial rests in the reasonable discretion of the trial court.” (People v. Jasper (1983) 33 Cal.3d 931, 935.) “Given the Legislature’s broad grant of authority to the trial courts to revoke probation ‘at any time’ following the commission of a new criminal offense (Pen. Code, § 1203.2, subd. (a)), ” following the decision in Coleman the California Supreme Court declared that “it would be improper for us to adopt a ‘supervisory’ rule which mandates staying such revocation proceedings as a matter of course until trial of the pending criminal charges has occurred.” (People v. Weaver (1985) 39 Cal.3d 654, 659.) Further, even if the court abuses its discretion in this regard, a defendant is not entitled to a reversal unless prejudice is established. (People v. Preyer (1985) 164 Cal.App.3d 568, 575.)
Here, the record shows the trial court exercised discretion when presented with defendant’s request for a continuance of the probation revocation hearing, and explained its reasons for denying the motion on the record. We find no abuse of discretion in the court’s reasoning or the determination to proceed expeditiously with the probation revocation hearing, given the direct and close connection between the new pending criminal charges and the prior events which resulted in defendant’s probation. Nor has defendant demonstrated how he could have been prejudiced by the timing of the proceeding, particularly in light of the subsequent dismissal of the pending criminal action. No error was committed by the court’s refusal to continue the probation revocation hearing.
II. The Evidence of a Probation Violation.
We turn to defendant’s contention that the evidence does not support the finding of a probation violation, which was based on his commission of the offenses of offering a false or forged instrument (Pen. Code, § 115, subd. (a)) and falsification of an official document (Gov. Code, § 6201). Defendant claims that the evidence fails to prove he “offered any document for filing in a public office” by “providing campus police with a copy of the court order.” He further argues that while his “family provided the campus police with a copy of the court order, ” the “prosecution failed to present any evidence” that he “was responsible for the form of documents provided to the campus police” by Wilridge and Beatty. Therefore, his argument proceeds, sufficient evidence was not presented of probation violations through proof of violations of either Penal Code section 115 or Government Code section 6201.
“Penal Code section 1203.2, subdivision (a) authorizes a trial court to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation....’ ” (People v. Jackson (2005) 134 Cal.App.4th 929, 935; see also In re Eddie M. (2003) 31 Cal.4th 480, 487, 503–504; In re Alex U. (2007) 158 Cal.App.4th 259, 265.) “ ‘When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.]’ [Citation.]” (People v. Johnson (1993) 20 Cal.App.4th 106, 110.) “ ‘[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 982; see also People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066; People v. Zaring (1992) 8 Cal.App.4th 362, 379.) A willful violation 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.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also People v. Valdez (2002) 27 Cal.4th 778, 787–788; People v. Atkins (2001) 25 Cal.4th 76, 85; People v. Lara (1996) 44 Cal.App.4th 102, 107.) The requirement of a knowing or willful violation does not additionally require proof of defendant’s awareness that his acts constituted a violation of the condition or was otherwise culpable in nature. (See People v. Valdez, supra, at pp. 787–788; People v. Ramsey (2000) 79 Cal.App.4th 621, 632.)
“ ‘As the language of section 1203.2 would suggest, the determination whether to... revoke probation is largely discretionary.’ [Citation.]” (People v. Galvan, supra, 155 Cal.App.4th 978, 981–982; see also People v. O’Connell, supra, 107 Cal.App.4th 1062, 1066.) Where, as here, “the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of 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.) On appeal we must of course “view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support.” (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 1249–1250.)
We find enough evidence in the record to support probation revocation based upon defendant’s violation of section 115, subdivision (a), which provides in pertinent part: “Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.” The purpose of section 115 is to protect the integrity of public records, and the concern of the statute is with the offering of false instruments for filing, registering, or recording in a public office. (People v. Powers (2004) 117 Cal.App.4th 291, 296–297; People v. Parks (1992) 7 Cal.App.4th 883, 887.) The legislative purpose is served “by an interpretation that prohibits any knowing falsification of public records.” (People v. Feinberg (1997) 51 Cal.App.4th 1566, 1579.)
“ ‘Section 115, by its terms, limits prosecution for filing false or forged instruments to those instruments which, “if genuine, might be filed, registered, or recorded” under state or federal law.’ [Citation.]” (People v. Hassan (2008) 168 Cal.App.4th 1306, 1316.) The scienter element of section 115 “requires that the defendant ‘knowingly’ offer a false instrument, and that the defendant actually offer the instrument for filing, registration, or recordation.” (People v. Powers, supra, 117 Cal.App.4th 291, 299.)
Defendant of course did not personally offer the falsified property return order to the clerk at the Department – precluded and warned as he was by the court from appearing at the UC campus. His liability for a violation of section 115 must rest upon his acts as an aider and abettor of the offer. The doctrine that “one may be liable as an aider and abettor ‘when he or she aids the perpetrator of an offense, knowing of the perpetrator’s unlawful purpose and intending, by his or her act of aid, to commit, encourage, or facilitate commission of the offense, “snares all who intentionally contribute to the accomplishment of a crime in the net of criminal liability defined by the crime, even though the actor does not personally engage in all of the elements of the crime.” [Citation.]’ [Citation.] Aiding and abetting does not require participation in an agreement to commit an offense, but merely assistance in committing the offense.” (People v. Morante (1999) 20 Cal.4th 403, 433.)
“ ‘To prove that a defendant is an accomplice... the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.] When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” [Citation.]’ [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1118, italics omitted.)
Inferences drawn from the evidence adequately prove that defendant acted as an aider and abettor of the violation of section 115. Defendant was aware from the prior hearing on the motion for return of property that he was at most entitled to a return of only some of the items on the list of property seized. In fact, the specific items included in the return order had yet to be finally adjudicated when defendant called to inform the Department that his agents would appear to collect the property ordered to be returned to him. When defendant contacted the Department he informed Traille through a voice mail telephone message that he had a “release form for all my property sealed from the courts, and I’m hoping to send someone to pick it up tomorrow.” (Italics added.) Defendant called again to reaffirm his authorization “to get all of his property back.” (Italics added.) The telephone messages manifest defendant’s knowledge and intent to obtain property that was not sanctioned by the existing court orders. Defendant then expressly authorized Wilridge and Beatty to present the documents to the Department. They in turn presented a packet of documents that purported to be, although it was not, the final order, and listed an inventory of all of the property seized, not just those items that the court was apparently considering for return to defendant. The inventory pages given to the Department did not reflect the order defendant requested to be filed with the court. We conclude that substantial evidence supports the inference that defendant facilitated the violation of section 115 by encouraging and assisting Wilridge and Beatty to offer a false court order for return of his property. The commission of a criminal offense justified the finding of a probation violation and the revocation of defendant’s probation. (Pen. Code, § 1203.2; People v. Arreola (1994) 7 Cal.4th 1144, 1161; People v. McGavock (1999) 69 Cal.App.4th 332, 338–339.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Banke, J.