(Super. Ct. No. CR08-3533)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal by defendant Timothy D. Crosby from an order of the Yolo County Superior Court finding him in violation of a condition of his probation and ordering him to serve 60 days in jail. On appeal, defendant contends the evidence is insufficient to support the court's finding and, therefore, reversal is required.*fn1 We agree and shall reverse the court's order.
On April 24, 2009, pursuant to a plea bargain, defendant pleaded no contest to possession of obscene matter depicting sexual conduct of a minor (Pen. Code, § 311.11, subd. (a)) and to misdemeanor evading a peace officer by means of a chase (Veh. Code, § 2800.1).
On June 5, 2009, defendant was placed on formal probation for three years. Among the conditions of probation were that he serve 150 days in county jail and that he "not possess any computers, printers or any related equipment."
On September 27, 2010, the probation department filed a declaration and order re violation of probation, stating that defendant was in violation of the above condition banning him from possessing a computer. The declaration stated that on September 23, 2010, the probation officer conducted a compliance check at defendant's residence and located a computer in an unlocked bedroom to which defendant had access. The court summarily revoked defendant's probation.
On December 15, 2010, the court conducted a contested hearing on the violation, found the violation true, and reinstated probation on the condition defendant serve 60 days in county jail.
Probation Officer Mike Ha testified that on or about August 23, 2010, he conducted a compliance search of defendant's apartment. Present at that time were defendant and defendant's 19-year-old son Robert. Robert's bedroom was locked and both Robert and defendant denied having a key to the room. Robert said there was another brother, and that brother had the key and was at work. Using a "card of some sort" Ha's partner was able to open the door. Inside the room Ha found a computer on the floor in front of the closet; he did not see a mouse attached to the computer and a keyboard may have been inside the closet. Ha told both Robert and defendant that the latter was not to supposed to have a computer in the house and that it needed to be removed. Ha told defendant to get rid of the computer, and suggested that he take it to the son's girlfriend's home.
On September 23, 2010, Officer Ha conducted another compliance search of defendant's residence. Defendant was present and Ha had him sit on a couch in the living room. Robert was with his girlfriend in Robert's bedroom which was unlocked. They too were taken to the front room. The computer was still on the floor in front of the closet and appeared to be in the same condition as it was during the search on August 23. Robert's girlfriend said ...