People v. Torres CA5

Filed 8/2/22 P. v. Torres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F082533, F082534 Plaintiff and Respondent, (Super. Ct. Nos. VCF363430, v. PCF362571)

BRIGIDO TORRES, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Stephen Drew, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.

INTRODUCTION While on formal probation, appellant Brigido Torres was arrested twice for domestic violence offenses, leading the People to file new criminal charges. At a contested probation revocation hearing, the trial court took judicial notice of a memorandum by the probation officer detailing the fact of the arrests and charges but providing no description of appellant’s underlying conduct. Based on the memorandum alone, the trial court found appellant violated his probation and sentenced him to two years in state prison. On appeal, appellant contends the trial court’s finding was not supported by substantial evidence. We agree. The fact appellant was arrested and charged is not evidence he violated the conditions of his probation. We reverse. BACKGROUND In May 2018, appellant pled no contest to charges in two different pending cases. In case No. PCF362571, he pled no contest to first degree burglary (Pen. Code, §§ 459, 460, subd. (a)),1 forgery relating to identity theft (§§ 475, subd. (b), 473, subd. (a)), and grand theft of a firearm (§ 487, subd. (d)(2)). In case No. VCF363430, he pled no contest to vehicle theft (Veh. Code, § 10851, subd. (a)). In both matters, appellant was placed on three years of formal probation with the condition that he “obey all laws, state, local, federal.” On August 6, 2020, the Tulare County Probation Department filed a document titled “Certificate and Affidavit of the Probation Officer” alleging appellant violated the terms and conditions of his probation by failing to obey all state laws. In an attached memorandum, the probation officer summarized the alleged violation as follows: