IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
November 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DENNY SARKIS HAZARABEDIAN, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Haerle, Acting P.J.
P. v. Hazarabedian
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 November 2008, appellant was on probation for a five-year term ending in 2011, having been convicted in 2006, after pleas of no contest, of seven felony counts in two separate cases. That same month, the Contra Costa County District Attorney's office filed a motion to revoke appellant's probation because of the discovery, during a probationary search, of many boxes of ammunition in a safe in his home. After a hearing at which appellant testified, the trial court found that he had violated the terms of his probation. The court revoked appellant's probation, but then reinstated it on condition that he serve a jail term of 90 days. Appellant appeals from this order, but we find it both supported by a preponderance of the evidence and not an abuse of discretion; we thus affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 20, 2005, the Contra Costa County District Attorney's Office filed an 18-count information against appellant. Sixteen of the 18 counts alleged violations of Penal Code section 12280, subdivision (b),*fn1 i.e., charging possession of an assault weapon. The other two counts charged violations of section 12312, possession of ingredients to make an explosive device (count 1) and section 12020, subdivision (a)(1), possession of a deadly weapon (count 18).
On July 12, 2006, a second separate information was filed charging appellant with seven felony counts, all of them charging violations of section 288, subdivision (c)(1), i.e., committing lewd acts upon a child (allegedly a boy) aged 14 or 15.
On December 7, 2006, appellant entered pleas of no contest to five counts of violating section 12280, subdivision (b), i.e., the charges contained in the first information filed against him, and two counts of lewd conduct with a child under section 288, subdivision (c)(1), i.e., the counts charged in the 2006 information. Pursuant to those pleas, the court convicted appellant on all seven counts and placed him on probation for a term of five (5) years. He was also given credit for 248 days of jail time, having already served 507 days.
On October 23, 2008, Walnut Creek Police Department officers conducted a probationary search of appellant's home. In a safe located in a spare bedroom of that home, they found five boxes of 5.56 millimeter ammunition in a red duffel bag and more similar ammunition located on another shelf in the same safe.
On November 4, 2008, the Contra Costa District Attorney's Office filed a petition to revoke appellant's probation. That petition alleged that appellant had violated the probationary term which required him to obey all laws by, specifically, possessing this ammunition in violation of section 12316, subdivision (b)(1).
A probation revocation hearing commenced on February 6, 2009,*fn2 continued on March 6 and 27, and concluded on March 30. At its conclusion the trial court found that appellant had violated a term of his probation; it revoked that probation, but reinstated it on condition that appellant serve a jail term of 90 days.
Appellant filed a timely notice of appeal on April 28.
At the hearing on the motion to revoke probation and in his brief to us, appellant argues that there was insufficient evidence presented that he placed, or even knew of, the ammunition found in the safe in his house. We reject this argument because it is clear from the record before us that there was adequate evidence to support the trial court's finding that appellant was simply not telling the truth when he testified he had no knowledge of the presence of the ammunition in a safe in a house in which he was the sole occupant.
Before getting into that evidence, however, we shall first note our standard of review, a topic totally ignored in appellant's briefs to us.*fn3 It is elemental that, in a hearing such as this, a trial court may order a felon's probation revoked "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . ." (§ 1203.2, subd. (a).) As one of our sister courts has summed the point up, that section "provides the court may revoke probation if it has reason to believe that the person has violated any of the probation conditions. More lenient rules of evidence apply than at criminal trials [citation], and the facts supporting revocation need only be proved by a preponderance of the evidence [citation]." (People v. Monette (1994) 25 Cal.App.4th 1572, 1575; see also, to the same effect, People v. Rodriquez (1990) 51 Cal.3d 437, 441 (Rodriquez); People v. McGavock (1999) 69 Cal.App.4th 332, 337; see, generally, 3 Witkin, Cal. Criminal Law (3d ed. 2000) Punishment, § 586, p. 780.)
An equally important principle is that: "Revocation of probation lies within the broad discretion of the trial court. [Citation.] Absent abuse of that discretion, an appellate court will not disturb the trial court's findings." (People v. Self (1991) 233 Cal.App.3d 414, 417; see also Rodriquez, supra, 51 Cal.3d at p. 445; 3 Witkin, Cal. Criminal Law, supra, § 577, pp. 768-769, and additional authority cited therein.)
With those principles in mind, we will now briefly outline (1) the evidence presented at the revocation hearing by the prosecution, (2) appellant's theory (and testimony offered in its support) regarding how the ammunition got where it was and why he was not responsible therefor, and (3) why a preponderance of the evidence was clearly in the prosecution's favor.
In the course of the four days of hearings, the prosecution presented four witnesses, specifically Walnut Creek Police Officers Dickey and Hopkins and Detectives Bertolozzi and Brown. The first two were present at the 2005 execution of the search warrant at appellant's residence, testified as to the items then recovered from appellant's safe there, and identified six photographs taken of the contents of that safe. According to their testimony, appellant lived alone at this residence, asserted to them that no one else had access to his home at that time, but acknowledged keeping a locked safe there, and supplied (via another officer who was on the phone to the search team) the combination to that safe. In that safe, the officers found a huge supply of guns (over 30, many of them assault weapons), all of which (with the exception of three) appellant acknowledged to be his. Those two officers also testified that appellant had denied owning or putting into the safe two explosive devices the police found there during the 2005 search. Finally, they testified that, in 2005, the safe they searched at appellant's home contained no "red duffel bag" containing ammunition.
The two detectives who participated in the October 2008 probationary search testified that, at that point in time, appellant was still living alone in the same house, told the officers that only he had access to the safe, that the safe was locked when the officers arrived there for the probationary search, that (again) appellant supplied the officers with its combination, and when those officers opened the safe they found ammunition in it. The first detective who testified stated that, when he advised appellant of this fact, the latter seemed "surprised."
The second of the two detectives, Detective Brown, identified several photographs of the 2008 contents of the safe, photographs later admitted into evidence. One of those pictures showed a "red duffel bag" which turned out to contain five boxes of live ammunition, amounting to 82 rounds. Brown also testified that the search of the safe revealed another bag, a "grey bag," also found to contain ammunition.
Via several witnesses, including himself and two brothers, appellant attempted to present an extremely complex explanation to the trial court as to how, somehow between 2005 and 2008, the ammunition apparently got into his safe without his knowledge. His version of events--condensed from the record and even from his brief to us--is as follows: (1) he was in police custody from the date of his arrest on the first of the two sets of charges against him in April 2005 until his release on bail in December 2005; (2) early in that period, a friend and one of his brothers saw that his house was unlocked and had apparently been ransacked and the safe left open and unlocked; (3) that brother picked up some money from the floor of the room where the safe was and put it into the safe, did not lock the safe because he did not know its combination, and never saw any "red bag" in or near the safe during that period; (4) other mainly unidentified "friends" helped a brother clean up the ransacked house in mid-2005; (5) when appellant was released on bail in December 2005, he went to his house, looked very briefly into the safe, noted that all the guns were missing as was, apparently, some of the money he had left there before his April 2005 arrest, never saw the red bag (which he admitted was his and had earlier contained ammunition) in the safe or elsewhere between the 2005 and 2008 searches; (6) after his brief look into the safe in December 2005, appellant locked it; (7) another of his brothers went to his house when appellant was again in custody in December 2006 and, at appellant's request (a request made after the probation conditions were imposed on him on December 7, 2006), removed all of the ammunition that was stacked on book shelves in the room containing the safe and took it out of the house and to a restaurant owned by a friend, where it still was; (8) in so doing, the brother forgot that his grey toiletry bag containing ammunition was still in the safe (to which he did not have the combination) where he had placed it prior to the April 2005 warrant search; (9) after appellant again returned to his home after being placed on probation in December 2006, he believed all of the ammunition that had been in the house had been removed by the second brother in 2006; (10) after his December 2006 return to the house, appellant never opened the safe more than a few inches, did so only to get money out, and could only open it that much anyway because of containers that had been stacked a few inches in front of the safe door since 2001.
As a result of all this, appellant argued to the trial court and continues to argue to us, someone other than himself put the two bags (the red duffel bag and the grey bag belonging to one of the brothers) containing ammunition into his safe.
However, the evidence before the trial court clearly pointed, and pointed overwhelmingly, in the opposite direction. First of all, appellant lived in the house alone. Second, only appellant knew the combination to the safe--neither of his brothers did. Thus, when the officers arrived to do the probationary search in October 2008, the safe was locked and they needed to get the combination from appellant to open it. Further, appellant conceded that (1) between 2005 and 2008, he was the only person who had the combination to the safe, (2) the red duffel bag found in the safe containing ammunition belonged to him, and (3) he had previously used that bag to carry ammunition to go "shooting." It was also uncontested that the other bag found in the safe containing ammunition, the grey toiletry bag, belonged to one of appellant's brothers, who had previously used it to carry ammunition; that brother, however, admittedly did not have the combination to appellant's safe.
Perhaps even more significantly, the trial court found numerous problems with appellant's version of events and his credibility as a witness. In delivering its verbal opinion at the close of the four-day hearing, that court characterized appellant's testimony as "astonishing" and "incredible" several times, and also noted respects in which his testimony was simply inconsistent. For example, the trial court noted that appellant testified that, after December 2006, he only opened the safe for "five to ten seconds at most" but later conceded that, when he opened the safe "he counted the cash." The court concluded: "You can't have counted the cash in five to ten seconds and also just eyeballed it and saw that the pile was smaller."
The trial court also found it "astonishing and, frankly, incredible" that appellant allegedly did not notice, when he opened the safe after December 2006, either "Mark's bag" (i.e., the grey bag) or the "red bag" (which he admitted had earlier used to carry ammunition) in the safe.
Finally, after noting other inconsistencies in appellant's testimony, the trial court observed that appellant was often "changing his story, and I do find that he is evading responsibility for very serious things he's done in the past, which suggests to me that he has every motive, reason and pattern of evading responsibility for what happened here. [¶] I suspect what happened here is he knew it was there, didn't know what to do with it . . . because he being a felon is not supposed to have this ammunition."
We fully agree with the trial court's view of the evidence presented by appellant. We thus affirm its order because it was supported by a preponderance of that evidence--indeed much more than that. Clearly, that court did not abuse its discretion in ordering appellant's probation revoked.
The order appealed from is affirmed.
We concur: Lambden, J. Richman, J.