People v. Mundell CA3

Filed 7/13/16 P. v. Mundell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE,

Plaintiff and Respondent, C080442

v. (Super. Ct. No. 15PRCS0165)

DAVID MUNDELL,

Defendant and Appellant.

The trial court revoked defendant David Mundell’s probation and sentenced him to 44 days in county jail. Defendant now contends there was insufficient evidence that he willfully violated a condition of his probation. We will affirm the judgment. BACKGROUND We recite only the facts relevant to the limited issue on appeal. Defendant was convicted of committing a lewd or lascivious act on a child over the age of 14 or 15 when he was at least 10 years older than the child. (Pen. Code, § 288, subd. (c)(l).) The trial court placed him on probation for three years. Later, a probation violation petition alleged defendant violated the conditions of his probation by (1) testing positive for marijuana, and (2) knowingly using, handling, or possessing marijuana that was not prescribed by a licensed medical practitioner. Then, in a second probation violation petition, it was alleged defendant violated the conditions

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of his probation by (1) knowingly using, handling, or possessing marijuana that was not prescribed by a licensed medical practitioner, and (2) failing to report to the probation department and submit a urine sample as directed by the probation officer. At the outset of the contested probation revocation hearing, the prosecutor said the People only intended to proceed on the failure to report violation. To prove this violation, the prosecutor called the probation officer to testify regarding defendant’s conduct while on probation. The probation officer testified that defendant failed to report to the probation office for a urine test on July 2, 2015, as directed. He explained that while he was not in the office on July 2, 2015, he knew defendant did not report because every person that reports to the probation office for a drug test must sign a log, which is “digitally uploaded into [the] probation program” and electronically stored. The probation officer stated that, prior to filing a probation revocation petition on July 21, 2015, he reviewed probation department computer records showing that defendant did not report to the probation department on July 2, 2015, as directed. Documentary evidence from the probation department was admitted into evidence. One of the documents, which contained chronological details related to defendant’s probation, stated that defendant did not report for a drug test on July 2, 2015. The probation officer added that although defendant called him on July 2, 2015, to reschedule the test, the probation officer did not receive defendant’s message until sometime later because the probation officer was out of town. Defendant did not testify at the hearing, and no evidence was presented showing that defendant reported to the probation office on July 2, 2015. The trial court found true the allegation that defendant violated the conditions of his probation by failing to report to the probation office and submit to a drug test as directed by his probation officer. The trial court revoked probation, sentenced defendant to a time-served sentence of 44 days in county jail, and ordered that defendant be returned to supervision under the original terms and conditions.