People v. Figueroa CA2/6

Filed 3/25/21 P. v. Figueroa CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B306288 (Super. Ct. Nos. 18CR05127, Plaintiff and Respondent, 19CR07458) (Santa Barbara County) v.

ELENA MARIE FIGUEROA,

Defendant and Appellant.

Elena Marie Figueroa appeals from the judgment after the trial court revoked probation and sentenced her to four years in county jail. She contends: (1) there was insufficient evidence that she violated the terms of probation, (2) she did not have adequate notice of the grounds for revocation, (3) the denial of her motion to continue sentencing violated her right to counsel, and (4) she was denied the right to be present at sentencing. We agree with Figueroa’s first contention, and therefore do not consider her remaining contentions. We reverse.

FACTUAL AND PROCEDURAL HISTORY In 2018, Figueroa pled guilty to possession of heroin in county jail (Pen. Code,1 § 4573.6, subd. (a)). The trial court suspended imposition of sentence and ordered her to serve three years of formal probation, including 120 days in jail. The following year, Figueroa pled guilty to second degree burglary (§§ 459, 460, subd. (b)), and admitted that she had violated the terms of probation in her 2018 case. The court suspended imposition of sentence and ordered her to serve three years of formal probation for her burglary conviction. For her probation violation, it ordered her to serve 180 days in jail. It then reinstated probation in that case. In 2020, prosecutors charged Figueroa with attempted residential burglary (§§ 664/459, 460, subd. (a)). They also alleged that she had violated the terms of probation imposed in her two previous cases by committing that crime. Figueroa pled not guilty to the attempted burglary charge and denied the probation violation allegation. The trial court held a combined preliminary hearing on the attempted burglary charge and hearing on the probation violation allegation. Officer Antonio Montojo was the sole witness. Prosecutors elicited much of his testimony to support the attempted burglary charge through the admission of hearsay. (See § 872, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070-1071.) Figueroa objected to his testimony to the extent it was proffered on her alleged probation violations. The trial court agreed, and excluded the testimony for purposes of that hearing. (People v. Quarterman (2012) 202 Cal.App.4th 1280, 1296.)