California Court of Appeal Sep 16, 2013 No. E054960Unpublished
Filed 9/16/13 P. v. Gaytan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E054960
v. (Super.Ct.No. FSB703383)
MARIO ALBERTO GAYTAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed.
Joanna Rehm, under appointment by the Court of Appeal for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Sabrina Lane-Erwin and Alana
Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Mario Alberto Gaytan appeals from the trial court‟s order terminating
his probation and ordering the previously suspended 23-year prison sentence to be
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executed. Defendant argues: 1) the evidence is insufficient to support the finding that he
violated the term of his probation that he violate no law by committing auto burglary
The revocation petition filed on August 3, 2010, charged defendant with violating
probation by committing auto burglary. That offense requires the defendant to enter into
a locked car with the specific intent to commit a theft or other felony. (Pen. Code, § 459
[“Every person who enters . . . a vehicle . . . when the doors are locked . . . is guilty of
burglary.”])
Defendant argues that there is no admissible evidence to show that the Ford was
locked, and so there is insufficient evidence that he committed felony auto burglary. The
only evidence that the door was locked was the hearsay testimony of Officer McMeans
that the Ford‟s owner told him he had locked it. The People concede this point.
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However, the People argue that the evidence still supports a finding that defendant
committed misdemeanor auto tampering (Veh. Code, § 10852), that is, he willfully
entered the Ford without the owner‟s consent and thus violated the term of his probation
that he “violate no law.”
The crime of misdemeanor auto tampering does not require proof of actual
damage to a vehicle. Evidence that defendant entered the unlocked vehicle without
permission, and with the intent to commit theft, is enough. (People v. Mooney (1983)
145 Cal.App.3d 502, 507) Here, the court heard the security guard‟s testimony that he
saw defendant in the gray Ford Probe on that morning and that he had previously seen
only a particular tenant of the apartment complex driving the car. The court also heard
Officer Elton‟s testimony that defendant told him he had come to Redlands to “take” a
car because he owned another man a lot of money. This is enough to establish, by a
preponderance of the evidence, that defendant committed auto tampering.
Defendant counters that even if the evidence does establish auto tampering, the
trial court‟s exercise of its discretion to terminate his probation and direct him to serve
the 23 years was based on its finding of felony auto theft, not misdemeanor tampering.
Defendant contends the matter must be remanded to allow the trial court to exercise its
fully informed discretion as to whether to terminate his probation or impose a less harsh
remedy. As defendant points out, the court in a probation revocation hearing must first
determine by a preponderance of the evidence whether the defendant violated the terms
of his probation. The second step is for the court to exercise its discretion as to whether
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the probation should be reinstated, modified or revoked. (People v. Latham (1988) 206
Cal.App.3d 27, 29.)
We conclude that remand would be a waste of judicial resources. As the trial
court commented in making its findings, “The rule of the trial court here is not to
determine whether he‟s guilty or innocent of a crime but whether he can be safely
allowed to remain in society. A different question and a different burden of proof. [¶]
. . . [¶] . . . [W]e have his statement to Officer Elton that he was there to take a car.
[¶] . . . [¶] . . . [I]t doesn‟t necessarily matter who the precise owner is . . . . [¶] . . . Mr.
Gaytan has violated his probation in this case.” Our review of the trial court‟s findings
shows that its main concern was not the exact crime that defendant committed when he
violated the probation term that he “violate no law.” Rather, the court based its decision
to revoke probation on the fact that defendant had come to that parking lot intending to
steal a vehicle, and, as it stated, “whether he can be safely allowed to remain in society.”
We see no likelihood that the court will exercise its discretion any differently on remand.
2. No Translator was Required
Defendant contends the trial court erred when it declined to suppress defendant‟s
statement to Officer Elton because his waiver of his Miranda rights was unknowing and
involuntary for lack of a Spanish language interpreter. We disagree. The court properly
allowed the statements into evidence because Officer Elton offered credible testimony
that defendant understood him and was able to answer his questions in a manner that did
not suggest that appellant needed an interpreter.
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In reviewing a defendant‟s claim that his Miranda rights were violated, the
appellate court accepts the trial court‟s resolution of disputed facts and inferences that are
supported by substantial evidence and the trial court‟s determination of witness
credibility. (People v. Cruz (2008) 44 Cal.4th 636, 667.) The appellate court
independently assesses, however, whether a defendant‟s waiver and statements were
voluntary, knowing and intelligent. (People v. Guerra (2006) 37 Cal.4th 1067, 1092,
overruled on another point by People v. Rundle (2008) 43 Cal.4th 76, 151.)
Here, the evidence upon which the trial court relied when it determined that
defendant‟s statements were not obtained in violation of Miranda for lack of an
interpreter is as follows. Officer Elton testified that he did not believe he needed to
contact the on-duty Spanish interpreter based on his communications with defendant.
Elton first read defendant his Miranda rights and took his oral waiver of those rights. He
then asked defendant “basic questions for the booking process, name, address; he
answered them all correctly.” Elton then asked defendant “Tell me what happened” and
defendant told him “that he owed somebody a lot of money. He was told to go to
Redlands to steal a car.” Elton clarified for the judge that defendant had used the word
“take” rather than “steal.” Elton testified that “He responded appropriately, and it never
came to my mind—if someone does delay a response, then I will probably look into it
further, if there‟s a communication problem. We were communicating appropriately, as
far as I‟m concerned.”
The court also heard testimony from defendant‟s adult nephew that he had known
defendant all his life, that they usually spoke Spanish together, and that defendant spoke
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only limited English. After the court made its ruling, it heard defendant‟s testimony that
he never spoke with Officer Elton and that “I told him I didn‟t understand English.”
However, the trial court is the determiner of witness credibility, and Officer Elton‟s
testimony is substantial evidence to support a finding that a lack of English proficiency
by defendant did not make his Miranda waiver unknowing or involuntary.
3. Admissibility of Officer Testimony regarding Bill of Sale and Whether the Red Mazda was Stolen
Given the People‟s concession, with which we agree, that the evidence does not
support a finding that defendant committed auto burglary, we need not address this
argument.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the revocation of the defendant's probation, concluding that while the evidence was insufficient to prove felony auto burglary, it was sufficient to establish misdemeanor auto tampering, and the trial court's decision to revoke probation was a valid exercise of discretion.
Issues
Whether there was sufficient evidence to support the finding that the defendant committed auto burglary.
Whether the trial court erred in admitting the defendant's post-arrest statement without a Spanish interpreter.
Whether the trial court abused its discretion in revoking probation based on the defendant's conduct.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The level of certainty required to support a probation revocation is less than that required to support a criminal conviction.”
“We conclude that remand would be a waste of judicial resources.”
“The court properly allowed the statements into evidence because Officer Elton offered credible testimony that defendant understood him and was able to answer his questions in a manner that did not suggest that appellant needed an interpreter.”